MCZ/CENTRUM FLAMINGO I, LLC, A DELAWARE LIMITED LIABILITY COMPANY, PETITIONER,
v.
AIMCO/BETHESDA HOLDINGS, INC., A DELAWARE CORPORATION, RESPONDENT
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MCZ/Centrum Flamingo I sought certiorari review of an order denying its motion to dissolve a lis pendens recorded by AIMCO/Bethesda Holdings. The court granted the petition, holding that AIMCO lacked a valid basis for the lis pendens because the underlying contract evidenced no intention to charge the property with a lien and AIMCO had contractually waived its vendor's lien rights.
The court held that AIMCO could assert no valid basis for the lis pendens because: (1) the contract evidenced no intention to charge the property with a lien to secure the profit payments; (2) AIMCO had contractually waived its statutory vendor's lien rights; and (3) the contract explicitly stated that AIMCO's right to the payments did not constitute an ownership interest in the property.
[1] An order denying a motion to discharge a lis pendens is reviewable by certiorari.
[2] A claim for an equitable lien may support a lis pendens.
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“An equitable lien or mortgage will arise from a written contract which shows an intention to charge or mortgage some particular property with a debt or obligation.”
Establishes the legal standard for when an equitable lien may be supported by a contract, requiring a clear manifestation of intent to charge property.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAIMCO sold property to MCZ under an agreement providing for profit-sharing payments to AIMCO arising from marketing and sale of the property. AIMCO re…
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WELLS, J.
MCZ/Centrum Flamingo I, LLC seeks certiorari review of an order denying its emergency motion to dissolve a lis pendens recorded by AIMCO/Bethesda Holdings, Inc. We have jurisdiction, grant the petition and quash the order denying the motion to dissolve. See Ness Racquet Club, LLC v. Renzi Holdings, Inc., 959 So. 2d 758, 759 n. 1 (Fla. 3d DCA 2007) (“An order denying a motion to discharge a lis pendens is reviewable by certiorari.”); Ross v. Breder, 528 So. 2d 64, 64 (Fla. 3d DCA 1988) (confirming that an order denying a motion to dissolve a lis pendens is reviewable by certiorari).
The instant petition stems from a lis pendens recorded in conjunction with a single count complaint in which AIMCO alleges that MCZ breached an agreement to share profits “arising from the marketing and sale” of property that AIMCO earlier sold to MCZ. Claiming that this property is the “source” from which these profits are to be paid, AIMCO seeks imposition of an equitable lien, with an accompanying lis pendens, on the property. While it is true that an equitable lien may arise from a written contract which evi dences an intention to charge property with a debt or obligation (and that such a claim may support a lis pendens), the contract in this case evidences no such intent. See Blumin v. Ellis, 186 So. 2d 286, 294 (Fla. 2d DCA 1966) (“An equitable lien or mortgage will arise from a written contract which shows an intention to charge or mortgage some particular property with a debt or obligation.”); see also Ness Racquet Club, 959 So. 2d at 761 (confirming that a claim for an equitable lien may support a lis pendens); Hansen v. Five Points Guar. Bank, 362 So. 2d 962, 964 (Fla. 1st DCA 1978) (stating that an equitable lien results only when the intention to offer land as security for a debt is clearly apparent). And although AIMCO alternatively argues that the claimed profits are part of the sale price to which it as vendor is entitled, it is contractually barred from seeking imposition of a vendor’s lien under the parties’ agreement:
16. Vendor Lien Waivers. [AIMCO] acknowledges that it waives any and all rights that it may have under Florida statutory law to file or otherwise institute a vendor’s lien ... in connection with ... payment of the Base Profit or any other Participation Payments.
Moreover, paragraph 29 of the agreement on which MCZ stakes its claim clearly provides in relevant part:
[AIMCO’s] right to [the payments at issue] does not constitute an ownership interest in all or any portion of the [the property at issue]
Because AIMCO can assert no vendor’s lien and because the contract evidences no intention to charge the property now owned by MCZ with a lien to secure payment of profits to AIMCO, no basis exists to support the lis pendens at issue. Accordingly, the petition for writ of certiorari is granted; the order denying he motion to discharge is quashed; and the lis pendens filed by AIMCO is discharged immediately upon the issuance of this opinion.1
. This opinion shall take effect immediately and will not be delayed by the filing of any motion for rehearing or other post-decision motion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ginnifer GEE v. U.S. Bank Nat'l Ass'n, 72 So. 3d 211 (Fla. 5th DCA 2011)…s, so as to make them conform to the true intent of the parties thereto, is well established.”), disapproved of on other grounds by Fisher v. Villamil, 62 Fla. 472, 56 So. 559 (Fla.1911); MCZ/Centrum Flamingo I, LLC v. AIMCO/Bethesda Holdings, Inc., 988 So. 2d 89 (Fla. 3d DCA 2008) (recognizing that equitable lien may arise from written contract that evidences intention to charge property with debt or obligation); and Blumin v. Ellis, 186 So. 2d 286, 294 (Fla. 2d DCA 1966) ("An equitable lien or mortgage wil…
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Blue Star Palms, LLC v. LED Tr., LLC, 128 So. 3d 36 (Fla. 3d DCA 2012)…would grant and dissolve injunctions. A petition for writ of certiorari is the appropriate procedure to challenge the denial of a motion to discharge a notice of lis pendens. See, e.g., MCZ/Centrum Flamingo I, LLC v. AIMCO/Bethesda Holdings, Inc., 988 So. 2d 89, 89 (Fla. 3d DCA 2008). “A court must dissolve a lis pendens that is based on an unrecorded document unless the proponent ‘establishes] a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the la…
Authorities Cited
- Blumin v. Ellis, 186 So. 2d 286 (Fla. 2d DCA 1966)
- Ross v. Breder, 528 So. 2d 64 (Fla. 3d DCA 1988)
- Calise Robertson v. State, 959 So. 2d 758 (Fla. 1st DCA 2007)
- Svend O. Hansen v. Five Points Guar. Bank, 362 So. 2d 962 (Fla. 1st DCA 1978)