ALLSTATE MORTGAGE CORPORATION OF FLORIDA AND INCA INTERNATIONAL CORP., A FLORIDA CORPORATION, D/B/A INCA MARINE CONSTRUCTORS, APPELLANTS,
v.
SHIRLEY STRASSER, A FREE DEALER, APPELLEE
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The court affirmed a trial court's order permitting redemption of foreclosed property after the day of sale but before confirmation. The court held that the 1972 amendment to Florida Statute § 45.031(1) did not eliminate the common law right to redeem prior to confirmation of the sale, interpreting 'sale' to mean the transfer of ownership upon issuance of the certificate of title, not merely the auction day.
The trial court did not err. The word 'sale' in the statute means the transfer of absolute ownership upon issuance of the certificate of title, not merely the auction day. Therefore, redemption may be granted at any time prior to issuance of the certificate of title, and the common law right of redemption is preserved.
[1] A statutory amendment in derogation of common law must be strictly construed and will not be interpreted to displace the common law further than is clearly necessary.
[2] The common law right of redemption in foreclosure actions persists until the confirmation of the sale, unless explicitly altered by statute.
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Join FLexlaw to unlock all legal intelligence“In cases when a person has an equity of redemption, the court shall not specify a time for redemption, but the person may redeem the property at any time before the sale.”
The statutory language at issue in the case, from the 1972 amendment to § 45.031(1), which the appellant argued eliminated post-sale redemption.
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Join FLexlaw to unlock all legal intelligenceShirley Strasser owned real property in Miami Beach. A mechanic's lien was filed and foreclosure judgment entered. At public sale, Allstate Mortgage C…
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The Appellee, Shirley Strasser, was the owner of certain real property located in Miami Beach, Florida. A mechanic’s lien was filed against said property and a final judgment of foreclosure was entered against her. When she failed to satisfy the judgment, the real property was offered for public sale, at which the Appellant, Allstate Mortgage Corporation of Florida, was the high bidder. Thereafter, subsequent to the day of sale but prior to expiration of the ten days for filing objections to the sale, the trial court entered its order permitting Shirley Strasser to redeem the property, which she did.
The sole question presented by this appeal is whether or not the trial court erred in ordering redemption subsequent to the day of sale, in view of the amendment to § 45.031(1), Fla.Stat., F.S,A., effective January 1, 1972, which reads in part as follows:
“In cases when a person has an equity of redemption, the court shall not specify a time for redemption, but the person may redeem the property at any time before the sale.”
The Appellant contends that, pursuant to this amendment, no redemption may be granted subsequent to the day of sale. We disagree.
Prior to the amendment to § 45.031(1), Fla.Stat., F.S.A., no mention was made regarding the right of redemption. The courts therefore recognized an inherent right of redemption which could be exercised at any time prior to entry of the order confirming the sale, unless otherwise directed by the trial court. Quinn Plumbing Company v. New Miami Shores Corporation, 100 Fla. 413, 129 So. 690; Huss v. Prudential Insurance Company of America, 123 Fla. 20, 165 So. 896; Holloway v. Sewell, 140 Fla. 464, 191 So. 825; Rosen v. Hunter, Fla.App.1969, 227 So.2d 689. This right of redemption evolved from the *845common law. Connor v. Connor, 59 Fla. 467, 52 So. 727.
§ 45.031(1), Fla.Stat., F.S.A., as now amended is clearly in derogation of the common law and must be strictly construed. However, it will not be interpreted to displace the common law further than is clearly necessary. Bryan v. Landis, 106 Fla. 19, 142 So. 650. The courts will infer such a statute was not intended to make any alteration other than was specified and plainly pronounced in clear unequivocal terms. Ex parte Amos, 93 Fla. 5, 112 So. 289; Bryan v. Landis, supra; Hialeah v. State, 136 Fla. 498, 183 So. 745, 6 Fla.Jur., Common & Civil Law, § 8. Inasmuch as that portion of the statute pertaining to time of redemption does not clearly change the common law right of redemption up until confirmation of the sale, we must hold the common law rule prevails. Furthermore, in enacting this statute, the Legislature failed to define or indicate the intended meaning of the word “sale”. Therefore, it is necessary that we do so.
Webster defines “sale” as “a contract whereby the absolute or general ownership of property is transferred from one person to another for a price or sum of money, or, loosely, for any consideration.”
A sale has similarly been defined in Edwards v. Baldwin Piano Company, 79 Fla. 143, 83 So. 915; Mathews v. Holloway, 83 Fla. 30, 90 So. 924; State v. Livingston, 159 Fla. 63, 30 So.2d 740. In accordance therewith, a judicial sale has been held not to be final and complete until confirmed by the trial court. MacFarlane v. MacFarlane, 50 Fla. 570, 39 So. 995. Inasmuch as the Legislature is presumed to know the meanings of words and rules of grammar [State ex rel. Hanbury v. Tunnicliffe, 98 Fla. 731, 124 So. 279], we hereby find that the Legislature intended to adopt the recognized meaning of the word “sale” and that the sale did not take place until ownership of the property was transferred. Said transfer takes place according to § 45.031 (3), Fla.Stat., F.S.A., ten days after the day of the sale, upon no objections being filed thereto and issuance of the certificate of title.
Based on the foregoing, we find the trial court had the power to grant a right of redemption up until the issuance of a certificate of title. As the order of redemption in the case sub judice was entered prior to the issuance of the certificate of title, the order appealed is hereby affirmed.
Affirmed,
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Fla. Erection Servs., Inc. v. Raymer McDONALD, 395 So. 2d 203 (Fla. 1st DCA 1981)…for bad faith must be strictly construed, citing Hartford Accident and Indemnity Company v. Smith, 366 So. 2d 456 (Fla. 4th DCA 1978); Carlile v. Game and Fresh Water Fish Commission, 354 So. 2d 362 (Fla.1977); Allstate Mortgage Company v. Strasser, 277 So. 2d 843 (Fla. 3rd DCA 1973), aff'd 286 So. 2d 201 (Fla. 1975). Finally, the carrier maintains that the elimination of Section 440.34(1), Florida Statutes (1978), providing for assessment of attorney’s fees against the employer or carrier “if the claimant p…
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Allstate Mortg. Corp. OF Fla. v. Strasser, 286 So. 2d 201 (Fla. 1973)…McCAIN, Justice. This cause is before us to review the decision of the Third District Court of Appeal reported at 277 So. 2d 843, which was certified to us as passing upon a question of great public interest, recited by that Court to be : “[W]hether Fla.Stat. § 45.031 as amended by chapter 71-5, Laws of Florida 1971, eliminates the right of redemption from foreclosure judgme…
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Ahmad Saidi v. Wasko, 687 So. 2d 10 (Fla. 5th DCA 1996)…Inc. v. Kane, 582 So. 2d 159 (Fla. 4th DCA 1991). Former section 45.031 and current section 45.0315, which govern the right of redemption are in derogation of common law, and should be strictly construed. Allstate Mortgage Corp. of Fla. v. Strasser, 277 So. 2d 843 (Fla. 3d DCA), affirmed, 286 So. 2d 201 (Fla.1973). Pursuant to former section 45.031, a mortgagor could exercise the right of redemption any time before the issuance of the certificate of title. Current section 45.0315 provides: At any time befor…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Ex Parte: Ernest Amos, 93 Fla. 5 (Fla. 1927)
- Hardy Bryan v. Cary D. Landis, 106 Fla. 19 (Fla. 1932)
- State v. Tunnicliffe, 98 Fla. 731 (Fla. 1929)
- Quinn Plumbing Co., Inc. v. New Miami Shores Corp., 100 Fla. 413 (Fla. 1930)
- Lucky Nation, LLC v. Al-Maghazchi (Fla. 4th DCA 2020)
- Edwards v. The Baldwin Piano Co., 79 Fla. 143 (Fla. 1920)
- Macfarlane v. Macfarlane, 50 Fla. 570 (Fla. 1905)
- Rubie C. Connor v. Connor, 59 Fla. 467 (Fla. 1910)
- Van Huss v. The Prudential Ins. Co. of Am., 123 Fla. 20 (Fla. 1936)
- City of Hialeah v. State, 136 Fla. 498 (Fla. 1938)