LLC KLS LLC LLC v. BD FL LLC 136NW 126 ST LLC LLC (2026)

The Appellants are contract purchasers of pre-construction condominium units at Wynwood Atriums, which were being constructed by the Appellee Developer, 136 NW 126 ST Project, LLC. They appeal an order granting in part and denying in part their motion to intervene. The Purchasers assert that the order effectively denied their motion.¹

For the purchase and construction of Wynwood Atriums, the Developer executed a mortgage with Triumph Capital Partners. The mortgage stated:

Section 2.4 Liens. Mortgagor shall not, directly or indirectly, create or suffer or permit to be created, or to stand, against the Property ․ any lien, charge, mortgage, deed of trust, adverse claim or other encumbrance ․ whether senior or junior in lien to this Mortgage․

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Section 5.4 Subordinate Financing. If Mortgagor, without the prior written consent of Mortgagee, executes or delivers any pledge, security agreement, mortgage or deed of trust covering all or any portion of the Property ․ Mortgagee may ․ declare the Obligation to be immediately due and payable.

To purchase the units, the Purchasers executed purchase agreements with the Developer. These agreements contained a subordination clause:

18. Subordination of Purchase Agreement to Mortgage Liens: The Purchaser agrees that all terms and provisions of this Agreement are, and shall be, subject and subordinate to the lien of any mortgage heretofore or hereafter made or placed Upon the subject property, subject lands, or the Condominium, and to any advances heretofore or hereafter made thereon, to the full extent thereof, without the execution of any further legal documents by the Purchaser. Nothing by reason of the execution of this Agreement shall be construed as giving or granting unto the Purchaser any lien upon the Unit, Purchaser hereby expressly waiving and relinquishing any lien or lien rights, legal or equitable, which might otherwise accrue or be available to Purchaser by operation of law or otherwise.

The Developer did not complete construction by the mortgage's maturity date. Triumph Capital extended the maturity date of the loan, but ultimately initiated foreclosure in February 2022. During that litigation, Triumph Capital assigned its interest to the Appellee, BD FL Notes. Thereafter, by way of an agreement, BD FL Notes allowed the Developer to continue to close on units to pay down the mortgage. The Developer, however, failed to close on the agreed upon number of units. Thus, BD FL Notes declared the agreement in default. The trial court entered final judgment of foreclosure on July 6, 2023.

Soon after, the Purchasers moved to intervene. They sought to vacate the foreclosure so that they could close on their units.² The trial court conducted five evidentiary hearings. It granted the Purchasers’ request in part, finding that they had a junior interest and adding them as parties to the post-foreclosure judgment.

The Purchasers argue that they should have been added as junior lienholders. Post-judgment intervention is permitted only in rare circumstances, when the proposed intervenor demonstrates a sufficient interest in the property. See Wags Transp. Sys., Inc. v. City of Miami Beach, 88 So. 2d 751, 752 (Fla. 1956) (permitting post-judgment intervention by non-party because “the petition to intervene showed such an interest in the res that the ends of justice require that it be granted”).

But this argument fails because their purchase agreements expressly disclaim and waive any lien rights. In the purchase agreement, the Purchasers agreed: “Nothing by reason of the execution of this Agreement shall be construed as giving or granting unto the Purchaser any lien upon the Unit, Purchaser hereby expressly waiving and relinquishing any lien or lien rights, legal or equitable, which might otherwise accrue or be available to Purchaser by operation of law or otherwise.” “We are bound to give effect to that agreement.” Summit Aviation, Inc. v. MSP Recovery Aviation, LLC, 51 Fla. L. Weekly D1815, *2 (Fla. 3d DCA Sept. 2, 2026). See Barakat v. Broward Cnty. Hous. Auth., 771 So. 2d 1193, 1195 (Fla. 4th DCA 2000) (“A fundamental tenet of contract law is that parties are free to contract, even when one side negotiates a harsh bargain.”).

Because the Purchasers expressly waived the lien rights on which their claim to junior lienholder status depends, they failed to establish the property interest necessary to warrant post-judgment intervention. See Dickinson v. Segal, 219 So. 2d 435, 436–37 (Fla. 1969); Lewis v. Turlington, 499 So. 2d 905, 907 (Fla. 1st DCA 1986); Idacon, Inc. v. Hawes, 432 So. 2d 759, 761 (Fla. 1st DCA 1983). Accordingly, the trial court did not abuse its discretion.

Affirmed.

FOOTNOTES

1.   We review this order for an abuse of discretion. See Mendoza v. Kendall Park Plaza, Ltd., 429 So. 3d 1082, 1084 (Fla. 3d DCA 2026).

2.   While not raised in their motion to intervene, the Purchasers later stipulated that they were aware of the litigation since October 2022—nine months before the stipulated final judgment of foreclosure.

GOODEN, J.