Real Estate Litigation 2026 Comparisons

Foreclosure in General

In Florida, a lender must file a lawsuit in court to foreclose on real property securing a loan. Florida does not permit non-judicial foreclosure for mortgages; self-help foreclosure is not permitted.

Process to Recover Real Property After a Loan Default

The process for judicial foreclosure begins when a borrower defaults. The lender files a foreclosure complaint in the circuit court, and the borrower is formally served. The borrower can respond or defend. If the court rules in favour of the lender, then the court enters a final judgment of foreclosure, authorising the property to be sold at public auction to satisfy the debt.

Florida usually does not provide a post-sale redemption period; however, the borrower may redeem the property only until the clerk files the certificate of sale or any earlier deadline set in the judgment under Fla. Stat. § 45.0315. After the sale and after the liens and costs are paid, any remaining proceeds go to the borrower. If the property remains occupied, the purchaser can seek a writ of possession to evict occupants.

In Florida, if there is a pledge of the equity of the property owner, such as membership interests in an LLC owning real property, a lender can foreclose on that equity interest instead of on the real estate itself. When the collateral is interest in an entity, the foreclosure is governed by Article 9 of the Uniform Commercial Code (UCC), codified in Chapter 679 of the Florida Statutes, rather than mortgage foreclosure statutes. This is typically non-judicial in nature unless judicial intervention is required by loan documents or by the circumstance.

The UCC sale generally involves the lender giving the required notice under Fla. Stat. § 679.612, marketing collateral in a “commercially reasonable” manner as required by Fla. Stat. § 679.610, and then selling the equity interests, sometimes within 30 to 90 days, depending on notice requirements and loan document terms. The purchaser of the equity interests effectively takes control of the entity owning the real estate without foreclosing on the land itself.

Florida only allows non-judicial foreclosure in a UCC Article 9 foreclosure on pledged equity interests, which requires the lender to give a commercially reasonable written notice, usually at least ten days before the sale, to the pledgor and any other parties entitled to notice. This notice must describe the collateral and say how the sale will occur.

In Florida, a borrower has the right to redeem the property, meaning that they can pay to stop the foreclosure, but this lasts only until the property is officially sold, which is the moment the clerk of the court files the certificate of sale following the auction. According to Fla. Stat. § 45.031, the foreclosure sale must be scheduled 20 to 35 days after entry of the final judgment. After the sale occurs, the certificate of sale must be issued promptly, often within a few days.

The borrower can redeem the property at any time before the clerk files the certificate of sale by paying the full amount in the final judgment, as provided in Fla. Stat. § 45.0315, including the loan balance, interest, fees and foreclosure costs. Florida does not give homeowners a post-sale redemption period, unlike other jurisdictions, since Fla. Stat. § 45.0315 extinguishes the right of redemption once the clerk files the certificate of sale. Although Florida law provides a ten-day period for objections after the filing of the certificate of sale, this objection window does not extend the borrower’s right of redemption.

A lender may pursue the equity of the property owner and foreclosure of a mortgage at the same time because Florida treats a mortgage foreclosure and a UCC equity foreclosure as separate. For example, Florida requires a mortgage foreclosure to be foreclosed judicially, while a UCC equity foreclosure may be foreclosed non-judicially through a UCC Article 9 sale.

There is no concern that the right of redemption will be impeded if a lender pursues the equity of the property owner and foreclosure of a mortgage at the same time. UCC Article 9 sales do not impair the borrower’s statutory right of redemption.

A lender may pursue other claims against the borrower or affiliated entities at the same time as a foreclosure claim. Lenders may also sue or assert other claims unless the foreclosure court already ruled on or denied the deficiency.

In Florida, a judicial foreclosure typically takes about 180 to 200 days, but a contested foreclosure may last longer. The court may issue an order to show cause, requiring the borrower to appear and explain why the foreclosure should not go forward or why relief such as a temporary stay should be granted. This can impact the overall timeline of the judicial foreclosure.

As discussed in 2.2 Foreclosing on Pledged Equity, a non-judicial foreclosure sale under UCC typically lasts 30 to 90 days.

If there is a deficiency following a foreclosure auction, the deficiency is found by subtracting the fair market value of the property at the sale date from the mortgage balance. A deficiency judgment permits the lender to recover the leftover amount when the home is sold in a foreclosure.

The lender can try to get a deficiency judgment, but Florida courts have the discretion under Fla. Stat. § 702.06 to grant it, reduce it or deny it. A court may deny a deficiency if, for example, the property’s fair market value on the sale date is equal to or higher than the amount owed. If the court does not decide the deficiency during the foreclosure case, the lender can file a separate lawsuit under Fla. Stat. § 702.06. The lender has one year from the foreclosure sale to do so.

Most Common Joint Venture Entity in Florida

In Florida, for real estate joint ventures, limited liability companies are generally the predominant entity choice, followed closely by limited partnerships. In either structure, participants benefit from comparable liability-shield frameworks, insulating equity owners from personal liability beyond their respective investments.

Co-Operation in Joint Ventures

Whether a joint venture or operating agreement requires ongoing co-operation between partners depends largely on the nature of the venture and the identity of the participants. Where the joint venture involves larger organisations, the partners’ roles are often more limited after formation, consisting primarily of making initial capital or asset contributions and exercising contractual voting or consent rights in good faith, while day-to-day management is delegated to appointed managers. By contrast, where a real estate joint venture reflects a collaboration among individuals or smaller entities, the governing agreement more commonly allocates affirmative operational responsibilities among the joint venturers, with each party responsible for specified services or functions in furtherance of the venture.

Common-Law/Statutory Duties for Owners

The common-law or statutory duties owed by persons with ownership interests in a real estate joint venture depend whether the venture is structured through a separate legal entity or exists solely by contract, and the roles of the participants.

Where a real estate joint venture is formed through a separate legal entity (usually a limited liability company or limited partnership), fiduciary duties are governed primarily by the applicable statutory framework and the governing documents. In structures managed by managers or general partners, fiduciary obligations are generally concentrated in the managers or general partners, while non-managing investors (owners) typically owe more limited duties arising from their exercise of contractual governance rights, including duties to act in good faith and in line with the venture’s purpose.

By contrast, where a real estate joint venture exists solely by contract and does not involve a separate legal entity, courts apply common-law joint venture principles that closely resemble partnership law. In that context, joint venturers are more likely to owe one another traditional fiduciary duties, including duties of loyalty, care and good faith, particularly where the parties share control or operational responsibilities.

Remedies for Owners

The remedies and causes of action available against owners who violate common-law, statutory or contractual duties depend on the structure of the joint venture and the source of the duty at issue. In entity-based joint ventures, non-managing owners are generally insulated from breach of fiduciary duty claims based solely on their ownership interests but may, in limited circumstances, be exposed to such claims where they fail to exercise governance rights in good faith, act inconsistently with the venture’s purpose or assume control as de facto managers.

By contrast, managers or general partners remain fully subject to fiduciary obligations and may be exposed to claims for breach of fiduciary duty, as well as contract, tort or statute, arising from acts or omissions within the scope of their managerial authority. Where an equity holder has engaged in conduct contrary to the entity’s or joint venture’s best interests, courts may also grant remedies that effectively sever that owner’s relationship with the venture, including judicial dissociation in the limited liability company context where authorised by statute or the governing documents, or other remedies including removal, expulsion or forced withdrawal in other structures, with equitable relief.

Alternatively, in a purely contractual joint venture in which the parties owe one another fiduciary duties under common law joint venture principles, owners may be subject to breach of fiduciary duty claims arising from acts or omissions that violate duties of loyalty, care or good faith. Depending on the nature of misconduct, such claims may be asserted alongside, or in the alternative to, causes of action sounding in contract, tort or statute, with courts exercising broad equitable authority to fashion relief sufficient to address the breach and protect the venture’s objectives.

Most joint venture agreements expressly address the governance and management of the venture. Where the decision-making process is vested in a single manager, or in an odd-numbered multi-manager body acting by majority vote, governance issues rarely arise. By contrast, where management authority is allocated to two managers, typically appointed by equal 50% joint venturers, the absence of a contractual deadlock resolution mechanism can create significant operational and strategic risks.

Where a joint venture agreement is silent on governance, decision-making will be determined by default law. For entity-based joint ventures, this will typically be the relevant enabling statute; for purely contractual joint ventures, courts will look to partnership law principles. In both cases, decision-making is generally by majority vote. Where management authority is vested in an even number of managers, this framework creates a material risk of deadlock, potentially leaving judicial dissolution as the only effective means of resolution.

Provisions permitting the automatic entry of judgment upon the occurrence of specified events are generally not found in joint venture agreements. Instead, they appear in settlement agreements, where an existing action has been resolved and dismissed. Including an automatic judgment provision in a joint venture agreement presents several obstacles. First, damages arising from an alleged breach of a joint venture agreement are typically unliquidated. Second, even where damages are liquidated, the party seeking entry of judgment must file a new action. In doing so, that party remains subject to procedural and due-process safeguards governing the entry of judgment, including service of process, notice, default procedures and independent judicial review.

With respect to provisions authorising the automatic entry of provisional remedies, particularly injunctions, Florida law permits parties to agree to the availability of injunctive relief, but not to require a court to automatically issue a temporary injunction. Florida Rule of Civil Procedure 1.610 makes clear that injunctive relief may be granted only upon judicial review of the evidence and satisfaction of the applicable legal standards. Florida case law reinforces this by requiring courts to independently evaluate the factors governing the issuance of a temporary injunction. The same limitation applies to other provisional remedies. Remedies such as pre-judgment attachment, pre-judgment garnishment, pre-judgment replevin, receivership and sequestration cannot be imposed automatically by contract but instead require prior judicial evaluation in accordance with governing statutes, rules and equitable principles.

If the joint venture was formed as a separate legal entity, the governing agreement provides the starting point, and its contractual dissolution provisions control. To the extent that the agreement is silent or incomplete, statutory principles control.

If the joint venture is purely contractual, the analysis again begins with the joint venture agreement. Where the agreement does not address winding down, courts generally look to common-law principles.

Special considerations in winding down joint ventures often stem from their common 50:50 ownership structure. Where assets cannot be liquidated, the joint venturers may need to reach agreement on an in-kind division and distribution of those assets.

In Florida, for negotiated guaranty agreements, bad boy guaranties are commonly used in non-recourse loans, where a guarantor becomes personally liable only if specific wrongful acts occur. These acts are usually within the guarantor’s control and materially harm the lender’s security. They are especially common in negotiated guaranty agreements because the parties tailor the carve-outs to reflect the structure of the non-recourse loan. Absolute guaranties, by contrast, are commonly used in standard, non-negotiated guaranty agreements, which makes the guarantor unconditionally liable for the borrower’s obligations, regardless of defenses and regardless of the borrower defaults.

Bad Boy Guaranties

Courts enforce these guaranties strictly according to wording, even when outcomes seem harsh, and have upheld personal liability where borrowers breached loan covenants or incurred prohibited subordinate debt. Triggering events must be defined clearly.

These are only enforceable if the underlying guaranty, that is, the primary written guaranty agreement in which the guarantor initially agrees to be bound, is clear. The bad boy provisions operate as carve-outs within that broader agreement. Also, the bad boy guaranty is only enforceable when the bad act occurs. Guaranties must be signed as a written instrument to be enforceable.

Limitations

Liability can arise for guarantors even for acts outside of the guarantor’s control, including prohibited acts committed by third parties that later have control of the borrower or its assets. This is because most bad boy guaranties define triggering events broadly and assign responsibility to the guarantor for prohibited acts committed by the borrower or its principals, regardless of whether those individuals are within the guarantor’s control. This can place the guarantor in a position where a third party’s conduct may automatically trigger recourse.

Furthermore, many bad boy guaranties contain a waiver of defences provision, which could leave the guarantor in a position where a third party’s conduct may automatically trigger recourse with few or no defences available to contest liability. However, the enforceability of such liability ultimately depends on the specific language of the guaranty and any applicable statutory or case law limitations.

Important Elements in Enforcing or Defending Enforcement of Completion Guaranties

A completion guaranty is an agreement in which a developer promises to ensure that a construction project is finished on time and according to specifications. In Florida, the guaranty must be a valid written contract signed by the guarantor. To enforce it, the lender or beneficiary typically must show: (1) a valid guaranty, (2) that the guarantor did not finish the project as the agreement required, (3) that proper notice of default was given if the guaranty requires it and all conditions precedent have been satisfied, and (4) the lender’s monetary loss because the project was not completed.

Rules/Limits on Enforceability of Unconditional or Absolute Guaranties

A guarantor may defend enforcement by arguing that no default was declared, that required notice or cure periods were not provided, or that the lender failed to meet its own obligations.

Unconditional or absolute guaranties obligate the guarantor to perform if the primary obligor defaults, but they do not waive all defences such as fraud in the inducement or illegality, which are non-waivable. Even unconditional guaranties may still require notice or include timing limits, and courts require explicit language stating that a guaranty is conditional for it to be treated as such.

Enforceability of Waivers/Defences

Waiver of defences is enforceable in Florida when clear and unambiguous, as courts interpret a guaranty strictly in favour of the guarantor, and so long as it does not violate statutes. Public policy-based defences cannot be waived. While many suretyship defences, such as notice of default, presentment or demand, can be expressly waived, a guaranty is not assumed to waive all the defences just because it says “unconditional”. The guaranty must explicitly state that all defences are waived.

Expedited Judicial Procedures Available in Florida for Guaranty Enforcement

Florida has no dedicated guaranty-enforcement judicial procedure, but summary procedure under Fla. Stat. § 51.011 can accelerate timeframes for pleadings, motions and discovery. Summary procedure is only available when specifically authorised by statute. It is available in several types of property proceedings such as recovery of real property, landlord actions and enforcement of liens. A guaranty cannot adopt summary procedure by contract. An independent statutory basis is required, though parties may include waivers (notice, jury trial, defences) that indirectly expedite litigation.

Simultaneous Pursuit of Other Remedies When Enforcing Provisions of a Guaranty

Florida permits lenders to enforce a guaranty while pursuing other remedies, including foreclosure. Double recovery is prohibited. Fla. Stat. § 95.11 requires guaranty enforcement actions to be filed within five years of breach.

In Florida real estate contracts, the default method for resolving disputes is litigation, not arbitration. In residential purchase-and-sale contracts, particularly the standard Florida Realtors/Florida Bar (FR/BAR) forms, arbitration is optional and applies if both parties choose to include it.

One notable exception is the “Exclusive Right of Sale Listing Agreement for Commercial Property”, which requires arbitration, although this applies to a brokerage listing agreement rather than a purchase contract.

For commercial real estate agreements, arbitration clauses are more common. This is because parties often prefer private, faster and flexible dispute resolution.

Arbitration in Florida is governed by Fla. Stat. §§ 682.01–682.25. Arbitration is a private dispute resolution process where the parties present their case to a neutral third party, called an arbitrator. The arbitrator issues binding decisions outside of the court system. In the context of real estate transactions, there are many advantages and disadvantages to consider before agreeing to arbitrate a dispute.

Advantages of Arbitration in the Context of Real Estate Transactions

• Faster resolution: Parties may set their individual timelines rather than follow the court’s schedule.
• Less costly: Arbitration can cost less, although this depends on arbitrator fees and the dispute’s complexity.
• Choice of arbitrator: Parties can choose an arbitrator with real estate knowledge.
• Confidentiality: Arbitration is private, unlike court proceedings. If a property owner, for example, wants to keep their issues private, then this may be preferable.

Disadvantages of Arbitration in the Context of Real Estate Transactions

• No public notice of dispute (lis pendens): In Florida, a lis pendens is a notice to the public that the property is tied to pending litigation, which helps prevent a clean transfer of title until the case concludes. According to Fla. Stat. § 48.23, a lis pendens must be tied to an actual court action affecting an interest in real property. Since arbitration is not a judicial proceeding, a lis pendens cannot be recorded, so the property can be sold, refinanced or transferred during arbitration.
• Limited remedies: Arbitrators in Florida lack judicial authority to grant certain remedies. For example, arbitrators cannot issue temporary restraining orders, injunctions, writs of possession, writs of attachment or writs of garnishment. Only a court can issue and enforce these remedies. Although a party may petition a Florida court to issue interim relief to help with arbitration, doing so adds delay and expense. So, these remedies are much less effective than when the case is filed directly in court.
• No jury: Parties waive jury rights, which can disadvantage buyers or homeowners since Florida juries frequently favour consumers in disputes against sellers or developers. This is because arbitration eliminates the right to a jury. Parties may contract for procedures that resemble a jury process, but these do not create a legally recognised jury within arbitration.
• Limited access to discovery: Arbitration discovery is usually narrow despite its importance in defect or non-disclosure disputes. However, broader discovery can be permitted if the arbitration clause or the parties’ agreement expressly authorises expanded discovery procedures such as depositions or interrogatories.

In Florida, mediation in real estate transactions is very common. The Florida Realtors/Florida Bar “AS IS” Residential Contract, one of the most widely used forms, requires parties to settle disputes through mediation. The National Association of Realtors also states that mediation is preferred for real estate transaction disputes.

Provisional remedies available in Florida real estate disputes include:

• Temporary injunctions: Courts may order a party to refrain from transferring, encumbering or otherwise altering real property while litigation is pending. This remedy is frequently sought in specific performance cases to prevent a seller from selling the property to a third party during the dispute. This is the primary tool for preventing a sale during litigation and requires a court order.
• Pre-judgment attachments: Courts may authorise the seizure of a party’s assets before judgment. This is often used when personal property or other assets are associated with the real estate dispute and are at risk of being removed.
• Pre-judgment replevin: This allows recovery of specific property before trial and can apply when fixtures or other items have been wrongfully removed from real property.
• Pre-judgment garnishment: Courts may freeze a party’s bank accounts or other debts owed to them when the underlying dispute includes monetary claims tied to the real estate transaction.
• Receivership: A court may appoint a receiver to manage disputed property during the litigation to preserve its value, help make sure it is properly maintained, and protect rents and profits.
• Sequestration: A court may order property to be under its control until ownership disputes are resolved.
• Lis pendens: Filing this notifies the public that the property is tied to litigation, preventing a clean transfer of title until the case concludes.

See 7.1 Types of Provisional Remedies in Real Estate Disputes.

If a provisional remedy such as a temporary injunction is later found to have been improperly granted, the plaintiff may be held liable for damages that the defendant sustained as a result of the restraint, pursuant to the injunction bond requirement in Florida Rule of Civil Procedure 1.610(b). This may include compensatory damages, fees and costs incurred in seeking to dissolve the injunction.

Additionally, because Florida requires a person seeking a temporary injunction to post a bond, the defendant can be reimbursed from that bond if the court decides the injunction should not have been granted, although Florida courts have allowed damages to exceed the bond amount if the injunction was obtained in bad faith. The plaintiff also risks financial liability for losses proximately caused by the improper use of the injunction.

Also, the injunction may be dissolved, meaning the court could cancel it, if the person requesting it does not comply with Florida’s strict procedural requirements, such as providing verified pleadings and proper evidence. Courts may also impose sanctions if someone acts in bad faith or misuses the injunction process.

Florida courts are willing to issue temporary or preliminary injunctions in connection with real estate transactions. To obtain a provisional remedy such as a temporary injunction, the movant must prove the following elements: (1) that there will be irreparable harm in the absence of the injunction, (2) that money on its own cannot fix the issue, (3) that there is a substantial likelihood of success on the claims of the case, and (4) that the injunction will not dissatisfy the interest of the public.

Irreparable harm in the context of a real estate dispute is shown by demonstrating that money damages cannot adequately remedy the loss of a property. For example, in Amelio v Marilyn Pines Unit II Condo. Ass’n, 173 So. 3d 1037, 1040 (Fla. 3rd DCA 2015), irreparable harm was shown by the ongoing failure by the condominium association to fulfil its obligation to repair an issue with the floor slab, resulting in excessive moisture in a condominium unit. The owners suffered ongoing harm and had no adequate remedy at law since the association had the exclusive duty to make repairs under the declaration. The court emphasised that the owner’s inability to self-mitigate due to the declaration’s restrictions created the type of ongoing, non-remediable harm that warrants injunctive relief, even before damages could be fully determined or realised. As a result, the court issued a mandatory injunction requiring the association to repair the floor slab that was causing the water intrusion.

In Florida, mechanic’s liens may be used to secure the payment for labour, services or materials needed to improve real property. A contractor in Florida does not need a court order to place a mechanic’s lien on property as long as the contractor follows the statutory requirements detailed in Florida’s Construction Lien Law, Chapter 713, Florida Statutes.

According to Fla. Stat. § 713.08, the mechanic’s lien must include specific information such as the legal description of the property, the amount due, and the dates of the first and last dates of furnishing labour, services or materials. Commencing a foreclosure action for the mechanic’s lien requires filing a lawsuit (a complaint). The foreclosure action must start within one year of the lien’s recording, unless shortened to 60 days by the owner through a Notice of Contest.

The most relevant regulations for private equity firms and REITs involved in bulk purchases and management of residential units in Florida are the state-pre-empted landlord-tenant rules under the Florida Residential Landlord and Tenant Act (Chapter 83, Part II), especially after HB 1417, which eliminated local tenant-protection ordinances and established uniform statewide rules for landlord-tenant governance. Operators also face heightened scrutiny under fair housing laws, including the Florida Fair Housing Act and HUD’s updated guidance on credit, criminal and eviction-record screening, which increasingly drives litigation over alleged discriminatory practices.

Oversight of residential tenancy rules come primarily from the Florida Legislature. Condominium‑related regulations, including bulk‑buyer provisions and post‑Surfside building‑safety mandates, are administered by the Florida Department of Business and Professional Regulation. Fair-housing enforcement is handled by HUD and the Florida Commission on Human Relations.

Public interest has a huge impact on the practice of real estate litigation here in Florida. It often shapes how courts and local governments balance property rights with expanded community goals, such as environmental protection and affordable housing. It plays a big role in zoning, land-use and permitting disputes, where challenges to regulatory decisions frequently hinge on whether governmental actions fulfil community needs. Public interest concerns may also influence judicial interpretation of statutes and equitable remedies.