A failure to properly communicate can result in issues during real estate transaction negotiations, frustrations after closing and confusion in the event of a foreclosure. Certain regulations and laws are present to better ensure proper communication during legal transactions.
What happens if a party to a lawsuit does not follow these rules? The court can dismiss the lawsuit. A recent case involving service provides an example. Service is a legal term referring to the moment one party informs the other that a legal proceeding is occurring.
In this case, the Homeowners’ Association (HOA) chose to foreclose on a property. The first step, the notice of service, was provided to the property owner at three addresses. An owner signed at one address. The HOA then chose to move forward with the next step in the service process using only this one address. The owners were not present at that address to receive the next step in the service process: the notice of service. Instead of checking the other addresses, the HOA filed an affidavit for service by publication.
What is service by publication? Service by publication is a process that allows a party to notify another of a lawsuit through a form of publication. This could involve publishing a notice in a local newspaper. If an individual is party to a foreclosure action and does not respond to service by publication, the foreclosure can move forward.
A court may allow service by publication if the requesting party can establish they were unable to locate the owners after a good faith effort.
In this case, the HOA received approval for service by publication, the owners did not respond and the HOA attempted to move forward with foreclosure. When the owners realized their property was in foreclosure, they filed a motion with the court to stop the process. The court ultimately found the HOA failed to conduct a diligent search and voided the foreclosure.
What is the lesson from this case? The case provides an example of the intricate nature of real estate law in Florida. The HOA lost their case because the failed to follow one element of one part of the law that was used to build their case. It is important to use experienced legal counsel when pursing a real estate law matter to help reduce the risk of a similar mistake.
