BERNARD A. SANTANIELLO, APPELLANT,
v.
DEPARTMENT OF PROFESSIONAL REGULATION/BOARD OF REAL ESTATE, APPELLEE
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Bernard Santaniello, a real estate broker, was disciplined by the Board of Real Estate for filing a lis pendens against property, allegedly in violation of Florida law prohibiting brokers from filing such documents to collect commissions or coerce payment. The court reversed, holding that the statute's proscriptions only apply when a broker acts in his licensed capacity, not in personal matters unrelated to brokerage.
The court held that section 475.42(1)(j)'s proscriptions against filing a lis pendens to collect a commission or coerce payment of money apply only when a broker acts in his capacity as a real estate broker or salesman, not in personal matters unrelated to brokerage practice.
[1] A real estate broker may be disciplined for filing a notice of lis pendens for the purpose of collecting a commission or coercing payment of money.
[2] A real estate broker may be disciplined for objectionable conduct in dealing with their own land, not just that of clients.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the mere filing of a lis pendens, as such, is neither illegal nor immoral. We can understand why a broker should not be permitted to file a lis pendens in connection with his brokerage practice, but we do not believe that the legislature intended to prevent a broker from taking legitimate steps which are available to any other citizen in matters unrelated to his practice.”
The court's core reasoning that the statute only restricts lis pendens filings in the broker's professional capacity.
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Join FLexlaw to unlock all legal intelligenceAppellant invested $5,000 in a corporate business venture that failed. He believed other principals diverted his funds to improve their own real estat…
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GRIMES, Acting Chief Judge.
Appellant seeks review of an order of the Board of Real Estate.
Appellant was charged with violating section 475.42(l)(j), Florida Statutes (1979), and therefore section 475.25(l)(a), Florida Statutes (1979), by filing a notice of lis pendens for the purpose of collecting a commission or for the purpose of coercing the payment of money. The undisputed evidence demonstrated that appellant had invested $5,000 in a corporate business venture. The business did not succeed, and appellant believed that other principals in the venture diverted the funds toward the improvement of their own real estate. Appellant filed a suit against them for the recovery of his investment. At a time when his lawyer was out of town, he filed a lis pendens against the land into which he thought the funds were being diverted. The value of the land was substantially more than the amount of his claim. Later, upon advice of his lawyer, he did not contest a motion to discharge the lis pendens.
The hearing officer specifically found that appellant did not act in his licensed capacity as a broker with respect to his investment in the business venture or the filing of the lis pendens. Nevertheless, the hearing officer recommended an order of guilt and a $500 fine. The board adopted the findings and recommendations of the hearing officer except that it increased the penalty to include a one year suspension.
Section 475.42(l)(j) reads as follows:
(j) No broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to affect the title of, or encumber, any real property if the same is known to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution or recording whereof has not been authorized by the owner of the •property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose.
A broker’s filing of a lis pendens to recover a real estate commission has been held a violation of section 475.42(l)(j). Llera Realty, Inc. v. Board of Real Estate, 385 So. 2d 1131 (Fla. 3d DCA 1980). Further, a broker may be disciplined for objectionable conduct in dealing with his own land as contrasted with that of his clients. Sellars v. Florida Real Estate Commission, 380 So. 2d 1052 (Fla. 1st DCA 1980). Likewise, a broker may be sanctioned for passing worthless checks not connected with his brokerage business. McKnight v. Florida Real Estate Commission, 202 So. 2d 199 (Fla. 2d DCA 1967). However, the mere filing of a lis pendens, as such, is neither illegal nor immoral. We can understand why a broker should not be permitted to file a lis pendens in connection with his brokerage practice, but we do not believe that the legislature intended to prevent a broker from taking legitimate steps which are available to any other citizen in matters unrelated to his practice.
Admittedly, appellant’s filing of the lis pendens without consulting his attorney was ill advised because the relief sought in his lawsuit did not specifically affect the property in question. Worldwide Development-Kendale Lakes West v. Lot Head quarters, Inc., 305 So. 2d 271 (Fla. 3d DCA 1974). However, there was no allegation or proof that he filed the lis pendens with malice or for an unlawful purpose. According to the board’s interpretation of the statute, a broker bringing a mortgage foreclosure unrelated to his brokerage business could not file a lis pendens on the land he sought to foreclose. Such a construction would violate the equal protection clauses of the United States and Florida Constitutions.
We hold that the proscriptions of section 475.42(l)(j) against the filing of a lis pendens to collect a commission or to coerce the payment of money only applies to those acting in their capacity as real estate brokers or salesmen. Therefore, we reverse the order of guilt and the resultant penalty.
SCHEB and SCHOONOVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morris v. Dep't OF Prof'l Reg., 474 So. 2d 841 (Fla. 5th DCA 1985)…eck drawn on insufficient funds constituted a violation of section 475.25(l)(b) as a matter of law. We disagree. Passing a worthless check may be probative of a finding of fraudulent intent. See Santeniello v. Department of Professional Regulation, 432 So. 2d 82 (Fla. 2d DCA), review denied, 438 So. 2d 832 (Fla.1983); see also Peck v. Florida Real Estate Commission, 204 So. 2d 355 (Fla. 2d DCA 1967). But it clearly is not determinative of fraud, as a matter of law. The finding of absence of fraudulent inten…
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Atef I. Michel and Sophie T. Michel v. Beau Rivage Beach Resort, Inc., 774 So. 2d 900 (Fla. 4th DCA 2001)…rmitted by contractual agreement.” Here, Beau Rivage and Chammah agreed to Michel’s mortgage lien as security for repayment of the $100,000 loan. Further, in this case, as in Santaniello v. Department of Professional Regulation/Board of Real Estate, 432 So. 2d 82 (Fla. 2d DCA 1983), the salesman’s action was not instituted to obtain a commission, but was completely unrelated to the brokerage business and, therefore, is not barred by section 475.42(1)0). The trial court misconstrued the statute as applying t…
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LaROSSA v. Dep't of Prof'l Reg., 474 So. 2d 322 (Fla. 3d DCA 1985)…censee to account for or return property received in trust or escrow by the licensee in his professional capacity [emphasis added]), review denied, 451 So. 2d 847 (Fla.1984); Santaniello v. Department of Professional Regulation/Board of Real Estate, 432 So. 2d 82 (Fla. 2d DCA) (proscription of statutes against filing of lis pendens to collect commission or to coerce payment of money, §§ 475.25(l)(a), .42(l)(j), Fla.Stat. (1979), only apply to those acting in their capacity as real estate brokers or salesmen…
Authorities Cited
- McKNIGHT v. Fla. Real Est. Comm'n & George J. Saunders, 202 So. 2d 199 (Fla. 2d DCA 1967)
- Worldwide Development-Kendale Lakes W. v. LOT Headquarters, Inc., 305 So. 2d 271 (Fla. 3d DCA 1974)
- Sellars v. Fla. Real Est. Comm'n, 380 So. 2d 1052 (Fla. 1st DCA 1979)
- Llera Realty, Inc. v. Bd. OF Real Est. (formerly Fla. Real Est. Commission), 385 So. 2d 1131 (Fla. 3d DCA 1980)
- Santaniello v. Dep't of Prof'l Regulation/Board of Real Est., 432 So. 2d 84 (Fla. 2d DCA 1983)