CopyCited 33 times | Published | Florida 3rd District Court of Appeal
...Such leases may or may not be unconscionable in any given case. Nevertheless, the Legislature finds that a combination of certain onerous obligations and circumstances warrants the establishment of a rebuttable presumption of unconscionability of certain leases... ." § 718.122(2), Fla. Stat. (1981). These onerous obligations and circumstances are, in turn, set out in Section 718.122(1), Florida Statutes (1981), and, when all are present, render a "recreational or other common facilities" condominium lease presumptively unconscionable "irrespective of the date on which such lease was entered into... ." § 718.122(1), Fla....
...This avowed self-dealing by the developer must, therefore, be considered a factor truly a powerful one of procedural unconscionability under Florida contracts law. Indeed, this factor has already been recognized as an indicia of unconscionability when applied to other related long-term condominium leases. See e.g., § 718.122(1)(a), Fla....
...Surely, we deal here with substantive unconscionability factors of the first magnitude under Florida contracts law. Indeed, these factors have already been recognized, in part, as indicia of common law unconscionability when applied to other related long-term condominium leases. See e.g., § 718.122(1)(e)(h), Fla....
...These indicia, without doubt, are powerful factors of substantive unconscionability under Florida contracts law. Indeed, such factors have already been recognized as indicia of common law unconscionability when applied to other related long-term condominium leases. See e.g., § 718.122(1)(b)(c)(d), Fla....
...The developer, then, is totally protected against non-payment of rent at the expense of the unit owners' interests. We deal again with a substantive unconscionability factor under Florida contracts law which has already been adopted when applied to other related long-term condominium leases. See e.g., § 718.122(1)(f), Fla....
CopyCited 25 times | Published | District Court, S.D. Florida | 1979 U.S. Dist. LEXIS 14404
...to the concept of "unconscionability" under Florida law. Indeed, this appears to be the course dictated by the Florida Supreme Court in its recent condominium decision of Fleeman v. Case,
342 So.2d 815 (Fla.1976) wherein the Court noted that while F.S.
718.122 did not apply in an attempt to invalidate a recreation lease on the basis of unconscionability, "There is ....
CopyCited 17 times | Published | Florida 4th District Court of Appeal | 1982 Fla. App. LEXIS 22267
...[6] As for appellants' other points on appeal, we have concluded that the appellants have failed to demonstrate reversible error. The appellants have asserted that the trial court failed to consider and apply the rebuttable presumption of unconscionability set forth in Section 718.122, Florida Statutes (1977)....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 1979 Fla. App. LEXIS 14197
...The proof of damages causally related to their breach would be a matter to be determined at trial. By Count VI appellant sought to set aside the lease as unconscionable. The appellees moved to dismiss this count because it alleged only eight of the nine elements of presumptive unconscionability set forth in Section 718.122(1), Florida Statutes (1977)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...of the lease provides for periodic increases in rental payments based on the rise in the cost of living; rental payments have increased over the years. In 1991, Maison Grande filed an action against Defendants seeking to have the rent escalation provision declared unconscionable pursuant to section 718.122, Florida Statutes (1991)....
...ntity of the quality in the person for or against whom the claim is made. Albrecht,
444 So.2d at 12. Maison Grande argues that res judicata is inapplicable because this cause of action, which asserts that the clause is unconscionable as violative of section
718.122, raises a new issue, and is not identical to any action previously asserted....
..."[A] request for different relief does not prevent the first proceedings from serving as a bar to a second action." Pumo v. Pumo,
405 So.2d 224 (Fla. 3d DCA 1981). The record supports the trial court's finding that the issue has been litigated. Additionally, section
718.122 does not create a new cause of action, but rather creates a rebuttable presumption to be applied in connection with the unconscionability action....
...3d DCA 1990), corrected by,
591 So.2d 1031 (Fla. 3d DCA), review denied,
591 So.2d 180 (Fla. 1991). We hold that Maison Grande has previously raised the issue of the clause's unconscionability and is barred from repeating its attack. Albrecht. Thus, we affirm the judgment. Affirmed. NOTES [1] Section
718.122, which became effective July 1, 1977, establishes a rebuttable presumption that a lease for condominium recreational facilities that contains certain provisions is unconscionable....
..."It is the intent of the Legislature that this section is remedial and does not create any new cause of action to invalidate any condominium lease, but shall operate as a statutory prescription on procedural matters in actions brought on one or more causes of action existing at the time of the execution of such lease." § 718.122(2), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...The trial court then stated that it would enter an order denying any temporary injunctive relief and would take the remainder of the case under advisement. The court further requested memoranda on whether the suit should be dismissed, specifically in relation to Section 718.122 [123], Florida Statutes (1979)....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1990 WL 88026
...ase; as already explained, the cause of action with respect to escalation accrues when the escalation occurs, which in the present case was substantially after the release was executed. The Beemans next contend that the trial court erred by applying section 718.122, Florida Statutes (1987), to the instant lease....
...Rudolph , under well settled principles of Florida law, "an unconscionable contract or an unconscionable term therein will not be enforced by a court of equity."
422 So.2d at 889 (emphasis added). In connection with its assertion of unconscionability, Island Breakers invoked section
718.122, Florida Statutes (1987). That statute establishes a presumption of unconscionability with respect to condominium recreation leases (or other condominium common facility leases) if certain criteria are met. [4] The trial court relied, in part, on section
718.122 in reaching its decision. Island Breakers argues that since section
718.122 was enacted in 1977, there *1346 is an impairment of the obligation of contract if the statute is applied to the instant recreation lease, which was executed in 1971....
...The legislation specifically indicates that it "is remedial and does not create any new cause of action to invalidate any condominium lease, but shall operate as a statutory prescription on procedural matters in actions brought on one or more causes of action existing at the time of the execution of such lease." Id. § 718.122(2)....
...hat the original 99-year base rental of $2 million would escalate to over $200 million as a result of the escalator clause. The amount is plainly unconscionable, even without regard to the trial court's findings that various of the other criteria of section 718.122, Florida Statutes, were also met by the lease....
...e condominium; (h) The lease provides for a periodic rental increase based upon reference to a price index; and (i) The lease or other condominium documents require that every transferee of a condominium unit must assume obligations under the lease. § 718.122(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2001 WL 686465
...NOTES [1] Under the recreational facilities lease, the developer retained ownership of the common areas which were the subject of the lease (i.e., pool, kiddie pool, clubhouse, picnic table area, basketball hoop, tennis courts, handball courts, and a play area for children). [2] Section
718.122(1)(a)-(i), Florida Statutes (1997), contains detailed guidelines for determining whether a condominium recreational lease is "presumptively unconscionable." [3] Section
718.401(1)(f) provides in pertinent part: (f)1....
CopyCited 2 times | Published | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 7026, 1993 WL 243128
...of the lease provides for periodic increases in rental payments based on the rise in the cost of living; rental payments have increased over the years. In 1991, Maison Grande filed an action against Defendants seeking to have the rent escalation provision declared unconscionable pursuant to section 718.122, Florida Statutes (1991)....
...tity of the quality in the person for or against whom the claim is made. Albrecht,
444 So.2d at 12 . Maison Grande argues that res judicata is inapplicable because this cause of action, which asserts that the clause is unconscionable as violative of section
718.122, raises a new issue, and is not identical to any action previously asserted....
...“[A] request for different relief does not prevent the first proceedings from serving as a bar to a second action.” Pumo v. Pumo,
405 So.2d 224 (Fla. 3d DCA 1981). The record supports the trial court’s finding that the issue has been litigated. Additionally, section
718.122 does not create a new cause of action, but rather creates a rebuttable presumption to be applied in connection with the unconscionability action....
...3d DCA 1990), corrected by,
591 So.2d 1031 (Fla. 3d DCA), review denied,
591 So.2d 180 (Fla.1991). We hold that Maison Grande has previously raised the issue of the clause’s unconscionability and is barred from repeating its attack. Albrecht . Thus, we affirm the judgment. Affirmed. . Section
718.122, which became effective July 1, 1977, establishes a rebuttable presumption that a lease for condominium recreational facilities that contains certain provisions is unconscionable....
..."It is the intent of the Legislature that this section is remedial and does not create any new cause of action to invalidate any condominium lease, but shall operate as a statutory prescription on procedural matters in actions brought on one or more causes of action existing at the time of the execution of such lease.” § 718.122(2), Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 2002 Fla. App. LEXIS 17539, 2002 WL 31662588
...traordinary and beyond the scope of their duties as set forth in the bylaws. Yet they furnished no description of these alleged extraordinary services, and thus nothing in the record supports that defense. REVERSED. KLEIN and MAY, JJ., concur. . See § 718.122(2)(a)l., Fla....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 24192
correct in finding that the requirements of section
718.122, Florida Statutes (1981), were not adequately
CopyPublished | Florida 3rd District Court of Appeal
...in
similar condominium arrangements. This is, however, not evidence that the
terms are legally unconscionable. 7
The Association next asserts that it should have benefited from a
statutory presumption of unconscionability as provided by section 718.122,
Florida Statutes, entitled “Unconscionability of certain leases; rebuttable
presumption,” which provides that a lease of recreational or other common
7
See also, § 8:1....
...Because the REA requires that the Association pay
the taxes, insurance, and maintenance for the Parking Garage, the Association
argues it should have benefitted from a presumption of unconscionability and
that this is a contested fact precluding summary judgment. The record on
appeal indicates that section 718.122 was briefly mentioned but not argued or
explained in the Association’s response in opposition to NRD’s motion for
summary judgment, or during the summary judgment hearing....
...rt and the specific legal
argument or ground to be argued on appeal or review must be part of that
11
presentation if it is to be considered preserved.”). Thus, the Association’s
argument relating to section
718.122 was not preserved for appellate review.8
Furthering its unconscionability argument, the Association asserts that
section
718.302, Florida Statutes (2021), entitled, “Agreements entered into by
the association,” can be the...
...The allegations in the second amended complaint are not suitable
for declaratory judgment because, in addition to seeking what amounts to an
advisory opinion, the Association seeks to have the court rewrite certain
express rights and obligations set forth in the publicly recorded REA. 9 On de
8
We note also that section 718.122 pertains to leases of recreational or other
common facilities located on the subject real property, not publicly recorded
easements and condominium declarations.
9
See 2000 Condo....
CopyPublished | District Court, M.D. Florida | 2011 WL 3170565
...The appellants Colony Beach & Tennis Club, Inc., and Colony Beach, Inc., appeal (Doc. 1-1) under 28 U.S.C. § 158(a)(1) from the bankruptcy court's January 15, 2010, judgment and order (Docs. 1-2, 1-3), which (1) declare a ninety-nine-year recreational facilities lease unconscionable under Section 718.122, Florida Statutes, and common law; (2) sustain the appellee's objection to claims sixteen, nineteen, twenty, and twenty-one; and (3) disallow the appellants' claims....
...(In any event, whether construed as a "core" proceedingsubject to a more lenient standard of reviewor a "non-core" proceeding, the outcome of this appeal is unaffected). c. Whether the Bankruptcy Court Correctly Declared the Lease Presumptively Unconscionable Under Section 718.122, Florida Statutes Section 718.122, Florida Statutes, creates a rebuttable presumption of unconscionability if a lease contains each of nine enumerated elements. The appellants concede (Doc. 19) that the Association proved the existence of each element except Section 718.122(g), which states that: The lease requires an annual rental which exceeds [twenty-five] percent of the appraised value of the leased property as improved, provided that, for purposes of this paragraph, `annual rental' means the amount...
...it in the condominium. ... The Colony's first condominium unit sold in December, 1973, and the remaining units sold (for the first time; re-sales occurred throughout the intervening thirty-five years) sometime after January, 1976. [4] In accord with Section 718.122(g), the pertinent tax year for determining the "appraised value of the leased property as improved" is 1974....
...he current, unimproved value of the leased property and a *216 CPI-adjusted annual rent to determine that the lease requires an annual rent exceeding twenty-five percent of the leased property's appraised value. However, Oscher acknowledged (1) that Section 718.122(g) requires an assessment of the leased property "as improved" and (2) that, if Oscher compared the "as improved" value of the leased property to the CPI-adjusted annual rent, the percentage became approximately ten percent. [8] Although Dr. Fishkind testified that he conducted no analysis under Section 718.122(g), the bankruptcy judge described [9] Dr. Fishkind as an expert witness "testifying to value" under Section 718.122(g) and rejected Dr....
...Fishkind's testimony (1) as based on a methodology that "is not an accepted scientific methodology" and as "strictly subjective and ... an analytical fiction." [10] The bankruptcy judge rejected Russell's testimony also because Russell's appraisal assumed, contrary to Section 718.122(g), that the leased property was both vacant and unimproved....
...ectus unambiguously values the cost of the land and improvements on the leased property at $870,000, the bankruptcy judge determined that the prospectuses "reflect an approximate value of $470,000 for the [leased] [p]roperty" [14] for the purpose of Section 718.122(g)....
...d without explanation pertinent facts and relied on no evidence reliably and lawfully appraising the value of the leased property and improvements in 1974. The bankruptcy judge erred in concluding that the Lease is presumptively unconscionable under Section 718.122(g)....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 22 Fla. L. Weekly Fed. B 297, 2010 Bankr. LEXIS 148, 2010 WL 286615
...242 at 165:13-22.) CONCLUSIONS OF LAW The Court concludes that the Lease is unconscionable and unenforceable and, therefore, disallows the Claims asserted by the Lessors against the Association in their entirety. Specifically, the Court concludes that the Lease is presumptively unconscionable pursuant to Section 718.122 of the Florida Statutes and that the Lessors failed to adequately rebut the presumption of unconscionability....
...s of when it was executed. See Penthouse N. Ass'n, Inc. v. Lombardi,
461 So.2d 1350, 1351 (Fla.1984). In addition, Florida law provides that certain condominium recreational leases, such as the Lease, are presumptively unconscionable. See Fla. Stat. §
718.122 (2008). a. The Lease Is Presumptively Unconscionable Under Fla. Stat. §
718.122. Section
718.122(1) provides that a lease pertaining to use by condominium unit owners of recreational facilities is presumptively unconscionable, irrespective of the date when such lease was executed, if certain enumerated factors are present in the lease. All parties conceded that the Lease satisfies all of the enumerated factors under Section
718.122(1) other than subparagraph (g), which gives rise to a presumption of unconscionability if the rent exceeds 25% of the value of the property during the first tax year after sales of condominium units commenced. The evidence establishes that the Lease satisfies each and every one of the factors enumerated in Section
718.122(1) of the Florida Statutes, including subparagraph (g)....
...uring the first tax year after the first sale of units at The Colony, the Court concludes that the initial annual base rent of $153,000 was approximately 32.5% of the Property's value in the first year, thus exceeding the 25% of value requirement of Section 718.122(1)(g)....
...at 893. The court observed that these requirements were "powerful factors of substantive unconscionability... recognized as indicia of common law unconscionability when applied to other related long-term condominium leases." Id. (citing Fla. Stat. § 718.122(1)(b)-(d) (1981))....
...484, 491 (Bankr.N.D.Ga.1994) ("Courts have often permitted the use of recoupment in bankruptcy cases."). The Association's objections to the Lessors' Claims for rejection damages are substantively asserted as a defense. Moreover, the Association is not seeking to apply Section 718.122 retroactively as an affirmative claim against the Lessors, but only as a defense to the Lessors' asserted Claims....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 25394
...licy such rent escalation clauses. As to Appeal No. 83-197, it is basic that the well pled allegations of a complaint are to be taken as true when faced by a motion to dismiss. The grounds for the motion to dismiss were these: 1. Whether pursuant to Section 718.122, Florida Statutes (1977) the recreational lease was facially unconscionable because it contained all nine elements which raise a presumption of unconscionability; and 2....
