CopyCited 41 times | Published | Supreme Court of Florida | 1979 Fla. LEXIS 4852
...Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for petitioners. Jeffrey E. Streitfeld and Mark B. Schorr, of Becker, Poliakoff & Sachs, Fort Lauderdale, for respondents. ENGLAND, Chief Justice. The present cause is before us to determine the constitutionality of section 718.401(4), Florida Statutes (1977), which provides for the deposit of rents into the registry of the court during litigation involving obligations under a condominium lease....
...the developer of the condominium and the lessors of a ninety-nine year recreational lease associated with the condominium. [3] The Association, as a representative of the unit owners, is the named lessee under the recreational lease. As required by section 718.401(4), the trial court granted the Association and unit owners' motion to permit payment of rents into the registry of the court, despite the developer and lessors' contention that the provision is unconstitutional....
...Obviously, this becomes a balancing process to determine whether the nature and extent of the impairment is constitutionally tolerable in light of the importance of the state's objective, or whether it unreasonably intrudes into the parties' bargain to a degree greater than is necessary to achieve that objective. Section 718.401(4), of course, does more than provide a procedure for the deposit of rents subject to disbursement upon compliance with some procedural showing or its equivalent....
...argained, producing potential erosion of value (at least in our persistently inflationary economy) which goes beyond mere inconvenience. To this extent at least, the statute "impairs" the landlord's contract. [41] The degree of impairment created by section 718.401(4) is confined to amounts deemed by the legislature not to be essential to the maintenance of the property in dispute....
...[44] On the other side of the ledger is the state's interest in requiring a unit owner's deposit of leasehold rents into court during the course of litigation. This provision rests on the state's exercise of its police power to promote the health, safety, and welfare of its citizens. While the specific objectives for section 718.401(4) are neither expressly articulated nor plainly evident from a reading of the statute, [45] the litigants have suggested that the legislature's concern was the protection of unit owners from the lessor's foreclosure for non-payment of rent during the pendency of the litigation....
..." [47] In that statute the legislature has acknowledged that the consequences of rent detention may extend to a deprivation of sums needed for purposes other than the preservation of the controverted property. The severity of impairment wreaked by section 718.401(4) would have been mitigated by a "personal hardship" provision like that in the landlord-tenant act, but none is present....
...rned on the clerk of the circuit court's registry account is not private property." This holding precludes any disposition of these earned interest funds to the proper prevailing party. Because of our construction of section
28.33, I must agree that section
718.401(4), which mandates the deposit of rents into the registry of the courts during litigation concerning a condominium lease, does in fact constitute an impairment of rights guaranteed under the contract clause and due process provisions of the Florida and United States Constitutions. With the prime rate of interest at an all-time high, a party's loss of earned interest is a significant financial deprivation. The fact that section
718.401(4) has the effect of mandating the forfeiture of interest earned on rents due under the lease when there is litigation concerning the lease makes this depository provision of the statute invalid....
...*783 In my view, if the trial court had the authority to direct the disposition of interest earned and the lessors or lessees could be made whole if their position was upheld at the conclusion of the proceedings, then such a depository arrangement would be constitutional. NOTES [1] Section 718.401(4) provides: In any action by the lessor to enforce a lien for rent payable or in any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner may raise any...
...The Court, after preliminary hearing, may award all or part of the funds on deposit to the lessor for such purpose. [2] Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Ass'n,
361 So.2d 128, 132 (Fla. 1978). [3] Although the Pompano lease was executed prior to the enactment of section
718.401(4) or its predecessor, section 711.63(4), Florida Statutes (1975), the Court specifically held in Century Village that this provision was intended by the legislature to be applied retroactively....
...Thus, in some months the landlord may be able to withdraw virtually all, and in others none, of the rent deposits. [44] See note 48 infra. The present lessors, in fact, would seem to be effectively barred from any disbursement under the statute in its present form. Section 718.401(4) provides that the "unit owner or association shall pay [rents] into the registry of the court." The provision permits disbursement of these rents, however, only "[w]hen the unit owner has deposited the required funds." As the Court...
CopyCited 33 times | Published | Florida 3rd District Court of Appeal
...One clause frequently contained in these condominium leases is, as here, a so-called escalation clause which "provides that the rental under the lease ... shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index." § 718.401(8)(a), Fla....
...Stat. (1981). This clause has by statute been prospectively declared "void" as against Florida public policy and may no longer be included or enforced in any lease which, unlike here, was entered into subsequent to the effective date of the statute. § 718.401(8)(a), Fla....
...See e.g., §
718.122(1)(e)(h), Fla. Stat. (1981). Moreover, the legislature has deemed the subject rent escalation clause, in itself, void as against Florida public policy when applied, unlike this case, to leases entered into subsequent to the effective date of the statute, §
718.401(8)(a), Fla....
...ced when combined with the sale of said lease as the terms of the lease are so onerous; this is particularly true where, as here, the unit owners are competing in a market where no new leases may contain the subject cost of living escalation clause. § 718.401(8)(a), Fla....
CopyCited 25 times | Published | Florida 1st District Court of Appeal
...[2] declaratory statement from the Division in order to preclude Sans Souci from raising the rent by exercising the escalation clause in the sublease. The Division granted Sans Souci's motion to intervene. On the merits the Division determined that Section 718.401(8), Florida Statutes (Supp....
...on went into effect on January 1, 1977, well before the June 2, 1977 date on which Sans Souci was assigned its interest in the lease as sublessor; that by virtue of the assignment, Sans Souci took subject to all Florida laws then existing, including Section
718.401(8), and that there could be no unconstitutional impairment of Sans Souci's contractual obligation, since Section
718.401(8) was in effect prior to the assignment of any interest in the lease to Sans Souci. As to the jurisdictional problem, appellant asserts that a Section
120.565 declaratory statement is an improper vehicle to use in this case, because the appellant's constitutional rights are at stake, to wit: the application of Section
718.401(8) unconstitutionally impairs the appellant's contractual *626 rights and appellee's obligations under the escalation clause....
...Department of General Services v. Willis,
344 So.2d 580, 590 (Fla. 1st DCA 1977). The appellant has shown no reason for, nor even sought, circuit court intervention seeking a declaration of the Division's lack of jurisdiction to rule on this matter, or of the facial invalidity of Section
718.401(8). In essence, the Division has merely determined the applicability and interpretation to be placed upon Section
718.401(8), Florida Statutes (Supp....
...ar circumstances." State of Florida, Department of Environmental Regulation v. Falls Chase Special Taxing District,
424 So.2d 787 (Fla. 1st DCA, 1982) (Robert Smith, C.J., dissenting). Further, Section
120.565, when read together and harmonized with Section
718.401, Florida Statutes (1981), providing that condominiums may be created on lands held under lease for no less than 50 years, evinces the logical deduction that the legislature wisely perceived that problems of precisely the type involved in the case at bar would arise....
...to issue declaratory statements to any party "who is affected or substantially affected by any Division's statutory provisions... ." Fla. Admin. Code Rule 7-3.01. The condominium unit owners sought a declaratory statement as to the applicability of Section
718.401(8) to their sublease escalation clauses, and we find that the Division properly issued a Section
120.565 declaratory statement....
...Key Haven Associated at 71. Turning to the Division's conclusions of law, we observe they state that the challenged escalation clauses relate to ground or land leases. The appellant contends that the leases do not fall within the regulatory perimeters of Section 718.401(8), because the master sublease refers to a condominium unit, not land....
...Clearly, the parties at bar could not have intended to have entered into a sublease of condominium units, since the Santa Rosa/Sans Souci lease was one for land. *628 Having determined that the subleases were land subleases, we next confront appellant's contention that application of Section 718.401(8) unconstitutionally impairs the contractual obligations embodied in the subleases. The conclusions of law by the Division include a determination that Section 718.401(8), effective as of January 1, 1977, [6] was applicable, because appellant Sans Souci had no rights in the subleases until June 2, 1977. However, for purposes of considering whether there has been an unconstitutional impairment of a contractual obligation by statutes regulating condominiums, such as Section 718.401(8), Florida Statutes (Supp....
...hen not to its taste and advantage. Cole, at 1012. Assuming that the automatic amendment theory is applicable, the law in effect at the time the agency rendered its declaratory statement would control the condominium declaration and master sublease. Section 718.401(8)(a), Florida Statutes (1981), [12] *630 quite clearly states the inclusion or enforcement of land lease rent escalation clauses of the type in the master sublease is void as being contrary to public policy. Although the Division's determination was based upon Section 718.401(8), Florida Statutes (Supp....
...te a new contract for a prior agreement. Higbie v. County of Los Angeles, 47 Cal. App.2d 281, 117 P.2d 933, 938 (1941); 16A Am.Jur.2d Constitutional Law § 695 n. 97 (1979). Hence, we would be required to affirm the Division's determination to apply Section 718.401(8), because the statute, effective on January 1, 1977, came into existence prior to the June 2, 1977 assignment of the leasehold....
...tements. A declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only... . [3] Section 718.401(8), Florida Statutes (Supp....
...[11] Similarly, if the sublease included the "from time to time" language in it, regardless of the inclusion of that language in the declaration of condominium, we would be inclined to construe such language against the drafter and apply the "automatic amendment theory." [12] Section 718.401(8)(a), Florida Statutes (1981), states in pertinent part: "It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in land leases or other leases or agreements for recreational facilities, land, or other commonly used facilities serving residential condominiums, and such clauses are hereby declared void for public policy... ." The Division's declaratory statement was rended on August 13, 1981. Since Section 718.401(8)(a), was effective on June 26, 1981, see Chapter 81-185, Section 17, Laws of Florida, the foregoing quoted section was applicable to the agency's determination.
CopyCited 22 times | Published | Supreme Court of Florida
...FACTS In March, 1975, appellee condominium associations filed suit against Century Village, Inc., the appellant herein, challenging the validity of certain recreation leases and the rent escalation clauses contained therein. Pursuant to Section 711.63(4), as amended by Chapter 75-224, Section 10, Laws of Florida [renumbered Section 718.401(4)] the escalated portion of the disputed rents was deposited by the associations into the registry of the court to be held pending litigation....
...s incident to maintaining and equipping the leased facilities. The court, after preliminary hearing, may award all or any part of the funds on deposit to the lessor or may advance the cause on the calendar and to a final resolution of the cause. [2] Section 718.401(4), Florida Statutes (Supp....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...WIGGINTON, Judge. The issue for our review is whether there was sufficient documentary evidence presented to the Division of Florida Land Sales and Condominiums for the division to find that an assignment of a master sublease effected a novation, thereby making section 718.401(8), Florida Statutes (Supp....
...declaratory statement from the Division in order to preclude San Souci from raising the rent by exercising the escalation *1119 clause in the sublease. The Division granted San Souci's motion to intervene. On the merits the Division determined that Section 718.401(8), Florida Statutes (Supp....
...tion went into effect on January 1, 1977, well before the June 2, 1977 date on which San Souci was assigned its interest in the lease as sublessor; that by virtue of the assignment, San Souci took subject to all Florida laws then existing, including Section 718.401(8), and that there could be no unconstitutional impairment of San Souci's contractual obligation, since Section 718.401(8) was in effect prior to the assignment of any interest in the lease to San Souci....
...uci was permitted to escalate the rents. Specifically, we noted that the record was silent as to precisely what date the declaration of condominium and the master sublease were filed, that date being the controlling factor as to the applicability of section 718.401(8)....
...In its order on remand, the division concluded from the documentary evidence presented that the declaration of condominium, with its exhibit H, the master sublease, was filed on June 25, 1974, but contained no automatic amendment clause to permit the declaration to be amended by section 718.401(8)....
...However, the division did find that an assignment to San Souci of the lease and sublease effected a novation of the obligation owed by the previous sublessor, Gulf Florida, to the sublessees, condominium unit owners. Resulting was a new obligation owed by San Souci, and the applicability of section
718.401(8) to the lease and sublease. Accordingly, the division declared, pursuant to section
120.565, that by virtue of section
718.401(8), San Souci could not exercise its escalation clause....
...On the contrary, we point out that section
120.565 contemplates the division's determining whether a particular statutory provision applies to the particular petitioner. As we recognized in our earlier opinion, and as we reiterate here, the issue of whether section
718.401(8) applies to the instant circumstances to void the escalation *1120 clause is inextricably tied to the issue of whether a novation was effected by the earlier assignment. Absent a finding of a new contract, the application of section
718.401(8), effective January 1, 1977, to San Souci's original contractual obligation would constitute an unconstitutional impairment of that obligation....
...orizes a reviewing court to provide whatever relief is appropriate "irrespective of the original form of the petition." Our ultimate task in the prior appeal was to review the division's action and to determine whether the division erred in applying section 718.401(8) to San Souci's sublease....
...In short, a novation has not been proven. Consequently, as argued in San Souci's Point VI, absent a new contract effected by the June 2, 1977, assignment of the sublease, as the declaration of condominium and master sublease were filed over two years prior to the effective date of section
718.401(8), retroactive application of that statutory section unconstitutionally impairs the contractual obligations embodied in the master sublease. San Souci,
421 So.2d at 628. We therefore reverse the division's order and hold that section
718.401(8) is not applicable to San Souci's sublease in light of the present record....
...tiary hearing on the issue of novation should one be requested by either, or by both, San Souci or La Plaza Condominium Association, Inc. REVERSED and REMANDED for proceedings consistent with this opinion. THOMPSON and ZEHMER, JJ., concur. NOTES [1] Section 718.401(8), Florida Statutes (Supp....
CopyCited 12 times | Published | Supreme Court of Florida
...ration of condominium, and other issues relating to condominiums. The district court affirmed in part and reversed in part and then certified the following questions: (1) Whether the lessor expressly consented to the incorporation of Florida Statute 718.401(4) into the terms of the contract....
...Begun in 1975, the action alleged violations of both the Deceptive and Unfair Trade Practices Act, and Condominium Act, and challenged the validity of the escalation clauses. It was coupled with a motion to pay the rent into the registry of the court as provided by section 718.401, Florida Statutes (1977)....
...Cole v. Angora Enterprises,
370 So.2d 1227 (Fla. 4th DCA 1979). The complaint was then refiled along with another motion for leave to deposit rent into the registry. Petitioner Kosow sought disbursement of the funds to make payment on the mortgage under section
718.401(4), Florida Statutes (1977)....
...nds. It then decided the cause and certified the questions as being of great public importance. We will respond to the questions in order. First, we are asked to decide whether or not the petitioner lessor expressly consented to the incorporation of section 718.401(4), Florida Statutes (1977), into the terms of the contract by virtue of the language in the declaration of condominium....
...statute is controlled by our decision in Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association,
361 So.2d 128 (Fla. 1978), that the parties intended to be bound by future amendments to the condominium act and as such section
718.401(4) is applicable and enforceable under the facts of the instant case. It logically follows that section
718.401(8), the statute that declares escalation clauses in recreation or land leases void and unenforceable, also was encompassed by the *835 language in the declaration....
...attorneys' fees. The case is remanded to the trial court for determination of such fees. It is so ordered. ALDERMAN, C.J., and ADKINS, OVERTON and McDONALD, JJ., concur. BOYD, J., dissents. NOTES [1] The two sections under discussion are as follows: § 718.401, Fla....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal
...ominium from the appellees. In January 1979 appellants filed suit against the architect, engineer, general contractor, and developer of the condominium seeking damages for alleged construction defects. In June appellants moved the court, pursuant to section 718.401(4), Florida Statutes (1977), to enter an order authorizing them to pay rent to appellees into the registry of the court pending the outcome of the litigation....
...er requiring the condominium association to make payments into an interest-bearing account, as stipulated by the parties, in lieu of the court registry. Appellees took an interlocutory appeal to the supreme court challenging the constitutionality of section 718.401(4)....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 1983 Fla. App. LEXIS 19303
...see to pay the lessor's attorneys' fees for suits instituted by the lessor to enforce the lease or to collect the rent due the lessor. Hasam instituted a suit to collect the rent, and Fairways paid the disputed rent to the Court Registry pursuant to section 718.401(4), Florida Statutes (1979). Fairways also counterclaimed for damages, alleging breach of Hasam's fiduciary duty to the signers of the original lease. After the Florida Supreme Court declared section 718.401(4) unconstitutional, [1] Hasam was paid the rents being held in the court registry and no further rents were withheld....
...the counterclaim. Under the lease, Fairways was obligated to pay Hasam's attorneys' fees in suits instituted by Hasam to collect the rent. Fairways argues on appeal that all fees claimed under the original suit were related to litigation concerning section 718.401(4), Florida Statutes, rather than collection of rent, and that the decision in Venetian Cove Club, Inc....
...Venetian Bay Developers, Inc.,
411 So.2d 1323 (Fla. 2d DCA 1982), forecloses the award of attorneys' fees in this situation. We cannot agree. In Venetian Cove, lessee sued the lessor-developer for construction defects in the leased property. Pursuant to section
718.401(4), the lessee deposited rental payments into the court registry pending resolution of the litigation. Lessor then appealed, asserting the unconstitutionality of section
718.401(4), and asked for attorneys' fees on appeal under a lease clause identical to the one involved herein. The court denied fees on the grounds that the non-payment of rent, and thus the invocation of the attorneys' fees clause, was prompted by the state law as set out in section
718.401(4), rather than the lessee's actions....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal
...In 1978, appellees, owners of Wilderness condominium units, and the association and the club (both now controlled by the condominium unit owners) filed suit against appellants, seeking, inter alia, to have the rent escalation clause declared invalid pursuant to section 718.401(8)(a), Florida Statutes (1977)....
...ease in the event the rent escalation clause was invalidated. Both parties moved for summary judgment on the claims hereinbefore set forth. The trial court entered final summary judgment rendering the rent escalation clause unenforceable, relying on section 718.401(8)(a), Florida Statutes (1977), and Hovnanian Florida, Inc....
...Division of Land Sales and Condominiums,
401 So.2d 851 (Fla. 1st DCA 1981), review denied,
415 So.2d 1360 (Fla. 1982). The court further granted final summary judgment rescinding the entire sublease. Appellants now challenge the unenforceability of the rent escalation clause, arguing that section
718.401(8)(a) was applied retroactively, resulting in an unconstitutional impairment of contract. There is no dispute that the escalation clause in this case is contrary to the express terms of the statute. Appellees have cross appealed the rescission of the sublease. Section
718.401(8)(a), formerly section 711.231, became effective June 4, 1975, specifically prohibiting and declaring void for public policy reasons "the inclusion or enforcement of escalation clauses in leases or agreements for recreational facilit...
...and even if it had, such application would be an unconstitutional impairment of the obligation of contract *771 under article I, section 10, of both the United States and Florida Constitutions. Recently, the supreme court approved the application of section 718.401(8)(a) to a recreational facilities lease executed prior to 1975....
...who signed the lease. The lease was attached to and made a part of the declaration and the lease referred back to the declaration. The supreme court held "that the parties intended to be bound by future amendments to the condominium act and as such section
718.401(4) is applicable and enforceable under the facts of the instant case." Angora,
439 So.2d at 834....
...re sublessors and sublessees of the recreational facilities sublease. These documents evidence an intent of these individuals to be bound by the condominium act as it existed when the declaration was recorded. Therefore, as in Angora, application of section 718.401(4) is not unconstitutional. See also Hovnanian, supra . We now turn to the issue of rescission of the entire recreational facilities sublease. [1] Section 718.401(8)(a) "prohibits the inclusion or enforcement of escalation clauses" in facilities leases serving residential condominiums....
...This finding by the trial court is supported by substantial competent evidence. The appellees, along with the Division of Florida Land Sales and Condominiums as amicus curiae, contend that rescission will chill the exercise of rights afforded to condominium unit owners by section 718.401(8)....
CopyCited 8 times | Published | Florida 4th District Court of Appeal
...he litigation was pending. This appeal was brought from an order dismissing with prejudice an amended complaint requesting that relief. The initial deposits in the registry of the court by members of the class were apparently made in accordance with Section 718.401(4), Florida Statutes (1977), since the related litigation arose out of disputes involving condominium recreation area leases....
CopyCited 7 times | Published | Florida 4th District Court of Appeal
...ican Capital Corp. LETTS, Chief Judge. Before us is yet another appeal emanating from a condominium dispute over a long term recreational lease and a trial judge's order permitting disbursement of moneys held in the registry of the court pursuant to Section 718.401(4) and 718.401(8), Florida Statutes (1977)....
...One cannot issue forth with language in the submission statement such as: "which long-term lease is attached to this Declaration and made a part hereof" and then argue that that same lease is not a part thereof pursuant to the condominium act. We thus decide that Section 718.401(4) is applicable and enforceable under the facts of the instant case. That being so it is also inescapable that Section 718.401(8) is also applicable so that the enforceability of the rent escalation clause is void for reasons of public policy....
...The developer-lessor has quite simply been hoisted on its own petard by these particular amendments. Having decided the applicability of the statute, we turn now to a new twist which must be a credit to the ingenuity of this particular lessor. As we have seen, Section 718.401(4) also provides for disbursement of funds "shown to be necessary for the payment of ......
...eat public importance. We therefore certify this entire decision so that our Supreme Court may pass upon the four principal issues here decided. These issues involve: (1) Whether the lessor expressly consented to the incorporation of Florida Statute 718.401(4) into the terms of the contract....
...minium Association, Inc. v. Kappa Corporation,
347 So.2d 599 (Fla. 1977). NOTES [1] See also the very recent decision in Coral Isle East Condominium v. Snyder,
395 So.2d 1204 (Fla. 3d DCA 1981). [2] Section 711.63(4) was, of course, the precursor to Section
718.401(4).
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...to vacate said order and to conduct further proceedings not inconsistent herewith. Reversed and remanded. LETTS, C.J., and GLICKSTEIN, J., concur. NOTES [1] This account has no connection with the deposit of rent into the court registry required by Section 718.401(4)(a), Florida Statutes (1977), which was found unconstitutional in Pomponio v....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...*1205 Nelson & Feldman and Michael K. Feldman, Martin L. Carlin and Gerald Forman, Miami, for appellants. Lapidus & Stettin and Robert P. Frankel and Herbert Stettin, Miami, for appellee. Before HENDRY, NESBITT and FERGUSON, JJ. FERGUSON, Judge. Pursuant to Section 718.401(4), Florida Statutes (1979), Coral Isle East Condominium and Coral Isle West Condominium as lessees placed in the registry of the court certain sums of money accruing for rentals under a ninety-nine year recreational leasehold agreement. Arthur I. Snyder as lessor moved to declare Section 718.401(4), Florida Statutes (1979) unconstitutional on the grounds that the statute had been adopted subsequent to the declaration of condominium of the lessee condominiums. By order of June 4, 1980 the Dade County Circuit Court declared that Section 718.401(4), Florida Statutes (1979) had been applied retroactively in violation of the contracts clause of the United States Constitution and the Florida Constitution....
...denied,
355 So.2d 517 (Fla. 1978). See also Golden Glades Club Recreation Corp. v. Association of Golden Glades Condominium Club, Inc.,
385 So.2d 103 (Fla.3d DCA 1980). In Century Village, supra, the supreme court held that where Section 711.63(4), [1] now Section
718.401(4), is incorporated by reference as part of the controlling document of the condominium no constitutional question of impairment of contract is raised....
...statute as amended from time to time, ... shall govern this Condominium and the rights, duties, and responsibilities of owners of condominium parcels therein. Because we find this language indistinguishable from that in Kaufman, supra, we hold that Section 718.401(4), Florida Statutes (1979) is automatically incorporated into the declaration of condominium of Coral Isle East and Coral Isle West Condominium....
...sent with respect to any modification or changes in obligation under the recreation lease. In each case, however, the court determined that the lessor, without written consent, was bound by the incorporated statutory amendments. Because we find that Section 718.401(4), Florida Statutes (1979) is incorporated into the declaration of condominium of appellant condominiums, we also find Section 718.401(4) constitutional as applied to appellants. Reversed and remanded for proceedings consistent with this opinion. NOTES [1] Section 711.63(4), Florida Statutes (Supp. 1974) was amended by the 1975 Legislature and renumbered to 718.401(4) by the 1976 Legislature....
CopyCited 5 times | Published | Supreme Court of Florida | 1983 Fla. LEXIS 2982
...Sandalfoot Cove Country Club,
404 So.2d 752 (Fla. 4th DCA 1981). That decision reversed the trial court's order dismissing respondents' complaint and held that the escalation provision in a recreational agreement attached to a declaration of condominium was governed by section
718.401(8), Florida Statutes (1979), and therefore was unenforceable. That court then certified the following question as being of great public importance: Specifically we ask the question of whether the lessor expressly consented to the incorporation of Section
718.401(8), Florida Statutes (1979) by use of the language herein set forth and also propound the question of whether the instant nonexclusive recreation agreement is encompassed by the same provision of the statute....
...cessor in interest to the Country Club (now a dissolved corporation). Cove Club Investors holds title to the recreational facilities and it is the lessor of same. The complaint sought to invalidate a rental escalation clause of the type addressed in section 718.401(8), Florida Statutes, contained in the recreation agreement....
...That fee was subject to an escalation clause tying it to the consumer price index and providing for periodic increases should the consumer price index rise because of inflation. In 1975, the legislature passed section 711.231, Florida Statutes (now section 718.401(8)), declaring these escalation clauses void as contrary to public policy....
...But nowhere does the petitioner agree to be bound by the declaration nor by the Condominium Act. There is no way to tie up this petitioner with the declaration and the language contained therein. [2] *356 Since it did not agree to be bound by the Act, section 718.401(8), Florida Statutes, will not touch the petitioner....
...e Act. The opinion of the district court is quashed and the trial court's order dismissing respondents' complaint with prejudice is reinstated. It is so ordered. ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur. NOTES [1] § 718.401(8)(a), Fla....
CopyCited 4 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 532
...impairing the obligations of that contract in violation of article I, section 10 of the Florida Constitution. We agree and have so held in analogous cases. In Pomponio v. Claridge of Pompano Condominium Inc.,
378 So.2d 774 (Fla. 1979), we held that section
718.401(4), Florida Statutes (1977), which provides for the deposit of rents into the registry of the court during litigation involving obligation under a condominium lease, had no effect on leases entered into prior to its effective date because allowing the statute's application would have impaired existing contracts....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal
...Brown of Rosin, Abel, Band, Brown & Russell, Chartered, Sarasota, for National Lake Developments, Inc. and Harry Macksey. CAMPBELL, Judge. Lake Tippecanoe Owners Association appeals from paragraph one of the trial court's order of March 20, 1980, which requires the Association to make certain payments pursuant to section 718.401(4), Florida Statutes (1979) [1] and from a subsequent order compelling compliance with the March 20th order....
...After bringing the action, Lake Tippecanoe moved for an order to deposit into the registry of the court rents under the disputed lease and all franchise fees under a CATV franchise agreement as they became due under the litigation. This motion was made pursuant to section 718.401(4), Florida Statutes (1979), the application of which had been found to be mandatory in Saul v....
...Basse,
375 So.2d 290 (Fla. 2d DCA 1979). As National Lake Developments had mortgaged the leased property and was obligated to make $4,000 per month payments, the parties stipulated that rather than deposit rent into the registry of the court pursuant to section
718.401(4), Lake Tippecanoe would pay National Lake Developments $4,000 per month to enable National Lake to meet its mortgage obligations....
...rtion of the monthly payments deposited in the special interest bearing savings account would be used to the extent necessary to maintain the CATV franchise system. Subsequent to these stipulations, the Florida Supreme Court held that application of section 718.401(4) to contracts in existence prior to the effective date of the statute is an unconstitutional impairment of contract rights....
...The lower court granted the motion and ordered Lake Tippecanoe to continue making payments. Lake Tippecanoe contends on appeal that the trial court erred in failing to vacate its prior orders and the parties' prior stipulations which were based on application of section
718.401(4). We agree. In Pomponio v. Claridge of Pompano Condominium, Inc ., the Florida Supreme Court stated, with regard to section
718.401(4), "[a]s applied retroactively, absent a lessor's express consent to its incorporation into the terms of the contract, the statute is invalid."
378 So.2d at 782. Lake Tippecanoe and National Lake Developments entered into the disputed *187 recreation lease on October 12, 1971, prior to section
718.401(4) becoming effective. There was no express consent to the incorporation of section
718.401(4) into the terms of the lease. Consequently, retroactive application of section
718.401(4) to this lease was improper. Absent section
718.401(4) the court has no authority to require Lake Tippecanoe to make payment of rent in this situation....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1991 WL 87231
...auses. § 711.231, Fla. Stat. (1975); ch. 75-61, Laws of Florida; Association of Golden Glades Condominium Club, Inc. v. Security Management Corp.,
557 So.2d 1350, 1352 (Fla. 1990). Effective January 1, 1977, chapter 711 was replaced by chapter 718; section
718.401(8)(a) recodified the prior declaration that escalation clauses were contrary to Florida's public policy. On July 1, 1988, section
718.401(8) was replaced by the virtually identical section
718.4015(1). Section
718.4015 again prohibited escalation clauses and applied the prohibition to all existing or future contracts. [1] On January 1, 1989, Maison Grande paid the full amount of the previously escalated rental payment but did not include the adjustment based on the consumer price index for 1989. Dorten sued Maison Grande seeking a declaration that section
718.4015 violated Article I, section 10, of the United States and Florida constitutions and the Fourteenth Amendment to the United States Constitution by impairing the obligation of contracts. Dorten also sued for breach of contract. [2] The trial court granted Dorten's motion for summary judgment on the count for declaratory relief, declaring section
718.4015 unconstitutional....
...s the conclusion that application of the statutory ban to leases entered into before 1975 is constitutionally prohibited. In Fleeman v. Case,
342 So.2d 815 (Fla. 1976), the Florida Supreme Court held that section 711.231, the earliest incarnation of section
718.4015, prohibiting the enforcement of escalation clauses in condominium leases, could not be applied retroactively....
...The supreme court's most recent pronouncement on the retroactive application of a statutory ban on escalation clauses came in Association of Golden Glades Condominium Club, Inc. v. Security Management Corp.,
557 So.2d 1350 (Fla. 1990). In Golden Glades, the court held that section
718.4015 did not prohibit the enforcement of an escalation clause entered into before June 4, 1975, for rent due from June 4, 1975, to October 1, 1988, the effective date of section
718.4015....
...mpairing the obligation of contract under Article I, Section 10 of both the United States and Florida Constitutions.'" Golden Glades,
557 So.2d at 1354, quoting Fleeman. Golden Glades did not answer the precise question posed by this case whether section
718.4015 prohibits the collection of escalation payments due after October 1, 1988, under the terms of a lease entered into when escalation clauses were still legal....
CopyCited 4 times | Published | Supreme Court of Florida | 1990 WL 20559
...We have for review Association of Golden Glades Condominium Club, Inc. v. Security Management Corp.,
518 So.2d 967 (Fla. 3d DCA 1988), in which the Third District Court of Appeal certified the following question as one of great public importance: TO WHAT EXTENT DOES SECTION
718.401(8), FLORIDA STATUTES (1985), APPLY TO RENT ESCALATION CLAUSES ENTERED INTO BEFORE THE EFFECTIVE DATE OF THE STATUTE? Id. at 967. Subsequent to the district court's decision, the legislature enacted section
718.4015, Florida Statutes (Supp. 1988), which included the provisions of section
718.401. Further, the legislature amended section
718.4015 in 1989 to clarify its 1988 enactment. We rephrase the certified question as follows: TO WHAT EXTENT DOES SECTION
718.4015(2), FLORIDA STATUTES, PROHIBIT ENFORCEMENT OF ESCALATION CLAUSES IN LEASES ENTERED INTO PRIOR TO JUNE 4, 1975? We have jurisdiction pursuant to article V, section 3(b)(4), of the Florida Constitution, and hold that the most recent am...
...Plaza Recreation Development Corp.,
514 So.2d 381 (Fla. 3d DCA 1987), and Golden Glades Club Recreation Corp. v. Association of Golden Glades Condominium Club, Inc.,
385 So.2d 103 (Fla. 3d DCA), review denied,
392 So.2d 1374 (Fla. 1980). Relying on those two decisions, it held that "section
718.401(8), Florida Statutes (1985), previously section 711.231, Florida Statutes (1975), which invalidate[s] rent escalation clauses in condominium recreation leases cannot be applied retroactively to invalidate the rent escalation clause at issue here."
518 So.2d at 967....
...clauses in condominium leases of recreation properties. In 1975, the legislature, by chapter 75-61, Laws of Florida, declared void these rent escalation clauses. This statute, section 711.231, Florida Statutes (1975), was subsequently renumbered as section 718.401. Section 718.401, Florida Statutes (1985), provided, in pertinent part: (8)(a) It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in land leases or other leases or agreements for recreational facilities, land, or other commonly used facilities serving residential condominiums, and such clauses are hereby declared void for public policy. In 1988, the legislature created section 718.4015 to modify what was previously set forth in section 718.401(8). Section 718.4015, Florida Statutes (1988), provided, in pertinent part: (1) It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses, in land leases or other leases or agreements for recreationa...
...y benefits or obligations arising from the escalation of fees prior to October 1, 1988, but only prohibits further escalation of fees pursuant to the escalation clauses, on or after October 1, 1988. (Emphasis added.) In 1989, the legislature amended section 718.4015 by chapter 89-164, Laws of Florida, to clarify its 1988 amendment....
...e parties agreed to be bound by subsequent amendments to the Florida Statutes or which have been found to be void because of a finding that such lease is unconscionable or which have been refused enforcement on the basis of the application of former s. 718.401(8) or s....
...711.231; and it prohibits any further escalation of rental fees after October 1, 1988, pursuant to escalation clauses in leases related to condominiums for which the declaration was recorded prior to June 4, 1975. (Emphasis added.) The legislature explained its reasons for the 1989 amendment as follows: WHEREAS, sections
718.4015 and
719.4015, Florida Statutes, were adopted in the 1988 session of the Legislature, and WHEREAS, it was the intent of the Legislature in adopting said legislation to afford protection to condominium and cooperative associations and their un...
...ted the initial passage of similar legislation on June 4, 1975, and WHEREAS, it was not the intent of the Legislature in adopting said legislation so as to affect escalations that have been rendered void by virtue of the operation of former sections
718.401(8),
719.401(8), and 711.231, Florida Statutes, or by judgment of a court of competent jurisdiction, and WHEREAS, it was not the intent of the Legislature to repeal former section 711.231, section
718.401(8), or section
719.401(8), Florida Statutes, and WHEREAS, at least one district court of appeal has construed the adoption of section
718.4015, Florida Statutes, so as to act as a repeal of former section
718.401(8), Florida Statutes, that is therefore no longer operative as to a lease that otherwise might have been governed by section
718.401(8), Florida Statutes, but for the enactment of section
718.4015, Florida Statutes, and WHEREAS, it is the intent of the Legislature to clarify its intent and passage of sections
718.4015 and
719.4015, Florida Statutes, so as not to apply to escalations that have been rendered void by virtue of said statutes, or by judgment of a court of competent jurisdiction......
...e Gardens Recreation and (2) the application of our decision in Cove Club Investors. We reject the respondent's claim and the Third District Court of Appeal's statement in Sky Lake Gardens Recreation that chapter 88-225, Laws of Florida (codified at section 718.4015), repealed section 718.401(8), the statute which the petitioner claims is enforceable under the principles we adopted in Angora Enterprises....
...Those circumstances did not change the enforcement of the lease provision. To adopt the petitioner's view would allow third parties to challenge an agreement's validity and void its provisions solely because of a merger. *1356 For the reasons expressed, we answer the question by holding that section 718.4015(2) does not prohibit the enforcement of this escalation clause and approve the decision of the district court of appeal....
...ing and equipping the leased facilities. The court, after preliminary hearing, may award all or any part of the funds on deposit to the lessor or may advance the cause on the calendar and to a final resolution. This statute was renumbered in 1976 as section 718.401....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...The controversy in this appeal involves the legality of an escalation clause in a condominium recreation lease; the clause provides for the yearly adjustment of rental payments in accordance with fluctuations of the Cost of Living Index. Contending that the escalation clause violated §
718.401(8), Florida Statutes (1979), the Division of Florida Land Sales and Condominiums (the "Division") ordered appellant, the developer of the condominium and original lessor of the recreation area, to show cause why a cease and desist order should not issue to prohibit enforcement of the escalation clause. After a hearing under §
120.57, Florida Statutes, the hearing officer found that the clause was violative of §
718.401(8) and recommended that appellant be ordered to cease enforcement of the escalation clause and to discontinue collection from condominium unit owners of payments attributable to the clause. The Department of Business Regulation adopted the findings of fact and conclusions of law of the hearing officer, and it is from this order that appellant now appeals. Appellant makes essentially two arguments: (1) that §
718.401(8) was applied retroactively in this case which resulted in an unconstitutional impairment of contract, and (2) that allowing the Division to orally amend the charges at the hearing deprived appellant of adequate notice and opportunity to defend. We find that the application of §
718.401(8) to invalidate enforcement of the escalation clause was not, under the circumstances of this case, a retroactive application....
...Section XXIV of said long-term lease contains an escalation clause as defined and prohibited by Section
718.701(8)(a), Florida Statutes (1978 Supp.). Initially, there is no dispute that the escalation clause in this case is contrary to the express terms of §
718.401(8)(a), [2] which provides: It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in leases or agreements for recreational facilities, land, or other commonly used facilities serving condominiums, and such clauses are hereby declared void for public policy....
...*854 The controversy in this case revolves around the appellant's perception that the statute is being applied retroactively in conflict with the Florida Supreme Court's decision in Fleeman v. Case,
342 So.2d 815 (Fla. 1977). In Fleeman, the court held that the legislature did not intend that §
718.401(8) apply to contracts which preceded its effective date (June 4, 1975), and even if the legislature had intended retroactive application of the statute, it would be an unconstitutional impairment of the obligation of contract....
...See also Palm-Aire Country Club Condominium Association No. 2, Inc. v. F.P.A. Corporation,
357 So.2d 249 (Fla. 4th DCA), cert. denied
365 So.2d 713 (Fla. 1978). Appellant argues that since the original lease of the recreation area between it and the Association pre-dated the effective date of §
718.401(8), the statute may not be used to defeat the escalation clause....
...In this regard, appellant views the creation of Condo No. 18 and the reaffirmation of the lease in its declaration as insignificant. We disagree. In our view, the fact that Condo No. 18's declaration of condominium was recorded after the effective date of § 718.401(8) is the critical factor which distinguishes this case from those cited by appellant....
...18 had no legal existence. In order for the recreation lease to be applicable to the unit owners of Condo No. 18, the lease had to be renewed by its incorporation into the declaration. Since Condo No. 18 could not be bound to the lease except through the declaration, § 718.401(8) would not be a retroactive impairment of a contract obligation if applied in this case; no "contract" between Condo No....
...18 and the developer could take place prior to the creation of the condominium. The essence of this case is that through the vehicle of the declaration, the developer sought to subject a newly formed condominium to a recreation lease which included an invalid provision. Section 718.401(8)'s prohibition against enforcement of an escalation clause applies to just this situation....
...would mean that a developer could avoid the statutory proscription merely by writing the declaration of each condominium so as to subject it to a pre-1975 lease, rather than executing a new lease. This would be contrary to the legislative intent of § 718.401(8)....
...ing officer, adequately informed appellant of the acts which the Division felt to be in violation of the statute. In plain terms, the Notice to Show Cause alleged that the declaration bound unit owners to an escalation clause which was illegal under § 718.401(8)....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...orces an escalation of rent clause contained in the subject lease. We affirm based on the following briefly stated legal analysis. First, the subject lease was entered into prior to the effective date of Section 711.231, Florida Statutes (1975) [now § 718.401(8), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1999 Fla. App. LEXIS 14225, 1999 WL 974147
...Appellant is the lessor under a condominium recreation lease. Appellee is the lessee condominium association, which has apparently stopped making payments on the lease because of this litigation. Appellant moved the court to order the association to pay the rent into the registry of the court pursuant to section 718.401(1)(d), Florida Statutes (1997), which the trial court denied....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...al. Jeffrey E. Streitfeld and Mark B. Schorr, of Becker, Poliakoff & Sachs, P.A., Fort Lauderdale, for appellees, Miller. BERANEK, Judge. These are consolidated interlocutory appeals growing out of a condominium recreational lease suit. At issue is § 718.401(4) Fla....
...The members of the Association and the "class" consisted of all unit owners of the condominium. The defendants were the lessors of the recreational facilities. The Millers were tenants under the rec lease, the Association was not. Plaintiffs filed a motion to deposit all rent money into the registry of the court pursuant to § 718.401....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...issues. Affirmed in part; reversed in part and remanded. NOTES [1] Escalation clauses in leases were declared void under Section 711.236 as created by Chapter 75-61, Laws of Florida [codified as Section 711.231, Florida Statutes (1975)]. Currently, Section 718.401(8)(a), Florida Statutes (1979) encompasses the section referring to escalation clauses in leaseholds.
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1981 Fla. App. LEXIS 20665
...decision,
403 So.2d 1010 (Fla. 4th DCA 1981), comes yet another condominium dispute over the validity of a monthly payment escalation clause in a "recreation agreement." Further considered is the question of whether the particular "agreement" here involved is encompassed by Section
718.401(8), Florida Statutes (1979). We reverse the trial court's holdings that the escalation provision is enforceable and that the recreation agreement is not governed by Section
718.401(8)....
...m time to time" appears here as it did in Century Village and Cole v. Angora, and this coupled with the obvious substantial similarity in content and portent, persuades us that the Century Village case out of the Supreme court controls. Accordingly, Section 718.401(8) is applicable and the escalation clause unenforceable. Passing now to the second question of whether the particular "recreation agreement" in this case is subject to Section 718.401(8), we note several unusual features of this agreement which set it apart from the normal long-term recreational document....
...is inescapably an agreement, the Appellee responds that the *754 use of the word "agreement" by itself takes it out of context and that inherently the statute intends rental agreements only, rather than agreements generally. The specific language of Section 718.401(8), Florida Statutes (1979) states in part, (a) It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in leases or agreements for recreational facilities, land, or other commo...
...f the Declaration "as covenants running with the land of the condominium parcel." In short this is a compulsory long-term agreement to pay for the use of recreational facilities incident to ownership of condominium units. To us that is exactly where Section 718.401(8) is aimed and the cat simply cannot be skinned another way by providing for outside membership as well....
...eme Court, in the belief that the issues it will pass upon in Cole v. Angora are inextricably woven with the issues raised in this accompanying cause. Specifically we ask the question of whether the lessor expressly consented to the incorporation of Section 718.401(8), Florida Statutes (1979) by use of the language herein set forth and also propound the question of whether the instant nonexclusive recreation agreement is encompassed by the same provision of the statute....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...77-1619 The appellants, who were the plaintiffs in the trial court, are the lessees under a long-term condominium recreation lease. The appellees, who were the defendants, are the developers of the condominium and the lessors under the lease. The lessees, pursuant to Section 718.401(4), Florida Statutes (Supp....
...d by virtue of an automatic amendment of condominium documents triggered by the adoption of Section 711.231. It follows that the rents deposited that are attributable to the escalation clauses are also subject to disbursement under the provisions of Section 718.401(4)....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal
...The appellants' basic argument is that the prior statutory prohibition against the inclusion or enforcement of escalation clauses in recreational leases, Section 711.231, Florida Statutes (1975), was repealed at the time the subsequent (present) statutory prohibition, Section 718.401(8), Florida Statutes (1977), became effective, i.e., January 1, 1977, and that the escalation clause in the present lease, which also took effect on January 1, 1977, was thereby rendered valid. The appellants argue that this is so, because to hold otherwise would give Section 718.401(8), Florida Statutes (1977), retroactive effect....
...ontinuously since 1975. We cannot impute to the legislature, as suggested by the appellants, a purpose by the re-enactment of the prohibition in a slightly different form to postpone the effective date of the prohibition to January 1, 1977, the date Section 718.401(8), Florida Statutes (1977), took effect....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1990 WL 88026
...A claim for unconscionability may be brought with respect to any recreation lease, regardless of when entered into, including leases executed prior to the 1977 decision in Avila South. See Penthouse North,
461 So.2d at 1351. The second approach is to rely on the statute now codified as section
718.4015, Florida Statutes (1989), which declares that rent escalation clauses in condominium leases are void. Under this approach there need be no independent proof of unconscionability, since the legislation outlaws such clauses. The critical question under section
718.4015 and predecessor statutes, [3] however, is whether the statutory proscription applies retroactively to leases entered into prior to the effective date of the legislation....
...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. On the eve of trial the legislature enacted Chapters 88-148 and 88-225, Laws of Florida, which created section
718.4015, Florida Statutes (Supp. 1988). Portions of section
718.4015 were transferred from subsection
718.401(8), Florida Statutes (1987), which had for some years "declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in land leases or other leases or agreements for recreational facilities...
...We do not reach the Beemans' contentions on the 1988 legislation. We have already sustained the trial court's determination under common law principles that the escalation clause in the subject lease is unconscionable and may not be enforced. Since section 718.4015 is merely an alternative *1347 avenue to reach the same destination, we need not determine the merits of the Beemans' arguments on that point....
...3d DCA), cert. denied,
379 So.2d 203 (Fla. 1979), overruled in part, Penthouse North Ass'n, Inc. v. Lombardi,
461 So.2d at 1351-52. [3] Chapters 88-148, section 7, and 88-225, section 2, Laws of Florida, transferred (with amendments) what was previously subsection
718.401(8), Florida Statutes (1987), to a newly created section
718.4015, Florida Statutes (Supp. 1988). The predecessor to subsection
718.401(8) was section 711.231, Florida Statutes (1975)....
...y transferee of a condominium unit must assume obligations under the lease. §
718.122(1), Fla. Stat. (1987). [5] The statute originated as section 711.231, Florida Statutes (1975). Ch. 75-61, § 2, Laws of Fla. It was transferred in amended form to section
718.401(8), Florida Statutes (Supp....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2001 WL 686465
...sition for themselves personally to the detriment of Windermere." As support for Windermere's right of first refusal to purchase the property from its former directors, Gerzina and Glover, the trial court relied upon two alternative theories: first, section 718.401(1)(f), Florida Statutes (1997), [3] and second, as disgorgement for usurping the corporate opportunity....
...323 (1935))(finding that an officer cannot acquire title to or interest in the property, real or personal, prejudicial and adverse to the corporation). Because the trial judge properly granted the remedy based on the disgorgement of the corporate opportunity, we do not find it necessary to address whether section 718.401(1)(f)'s right of first refusal, the other basis on which the trial judge granted the remedy, retroactively impaired the contract....
...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 | Florida 4th District Court of Appeal
...Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellees. PER CURIAM. This is an appeal from a non-final order disbursing recreational lease rental deposits from the registry of the court. The trial court determined that Section 718.401(4), Florida Statutes (1979), which requires such deposits, is unconstitutional. We affirm by holding that Section 718.401(4) is unconstitutional as applied to the facts of this case....
...The appellants, The Tradewinds of Pompano Association, Inc. and several unit owners, commenced suit against the original lessor and the present lessors of a condominium recreational lease contending that the lease was unenforceable for various reasons. *977 Pursuant to Section
718.401(4), [1] the appellants deposited certain of the unit owners' rents into the registry of the court. The lessors moved for an order directing the clerk to disburse the deposits to them, and further, directing the clerk not to accept any additional deposits. After a hearing, the court, finding Section
718.401(4) unconstitutional, granted the motion. This appeal followed. All of the parties agree that the Florida Supreme Court declared Section
718.401(4) unconstitutional as an impermissible impairment of the obligation of contract, at least with respect to contracts in existence on the effective date of the legislation. Pomponio v. Claridge of Pompano Condominium,
378 So.2d 774 (Fla. 1980). The appellants contend that some of the unit owners' individual leases were executed after October 1, 1974, the alleged effective date of the predecessor of Section
718.401(4), and that the legislation, therefore, applies to their obligations. The appellees contend that the lease came into existence prior to October 1, 1974. According to the Pomponio decision, therefore, Section
718.401(4) would constitute an unconstitutional impairment of the obligation of contract created by the lease....
...Nevertheless, the fact that some of the unit owners became parties to the lease after October 1 does not alter the existence of the lease and the lessors' obligations before that date. Consequently, because the lease existed prior to the effective date of Section 718.401(4), Pomponio dictates a finding that under these facts the application of the statute is unconstitutional as impairing the contract rights of the lessors....
...LETTS, C.J., concurs specially with opinion. *978 LETTS, Chief Justice, concurring specially: I concur in conclusion only and would comment that I am surprised that the record as presented contained no copy of the declaration of condominium. NOTES [1] 718.401(4)(a) In any action by the lessor to enforce a lien for rent payable or in any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner or the association may raise...
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2004 WL 2101991
...ida Statutes. Second, while section
44.104 and chapter 682 are similar, there are some differences. It appears that some arbitration agreements may be subject to both statutes. Compare §
44.104(1), Florida Statutes, with id. §
682.02; see also id. §
718.401(1)(f)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...." [1] Moreover our version of common sense dictates that a power to purchase granted to an association must, subject to statutory or contract limitations to the contrary, include the right to assess in the manner provided elsewhere in the declaration, otherwise how could the power ever be exercised? Under the provisions of Section 718.401(6)(C), Florida Statutes (1979), all that is needed to exercise an otherwise valid option to purchase a recreational lease is the approval of 66.66% of the unit owners....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...ecently foreclosed on it, and Dolphin Towers Condominium Association (the Association), the lessee named in the lease. Petitioners moved to require respondents to deposit the rent accrued under the lease into the registry of the court as mandated by Section 718.401(4), Florida Statutes (1978 Supp.). After proper hearing the trial court denied the motion, and petitioners by petition for certiorari seek review of that denial. The only question before us and the only one decided by this opinion is whether Section 718.401(4) is applicable. We hold that it is and, therefore, grant certiorari and reverse. Section 718.401(4), Florida Statutes (1978 Supp.) provides: In any action by the lessor to enforce a lien for rent payable or in any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease...
...The injury to petitioners is evident and remedy by full appeal from the final judgment would be inadequate. The petition for writ of certiorari is granted. The order of the trial court is vacated, and this cause is remanded to the trial court for entry of an order requiring respondents to deposit all rents in compliance with Section 718.401(4), Florida Statutes (1978 Supp.)....
CopyPublished | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 12818, 2009 WL 2762686
...ter the statute’s enactment, the statute is not being applied retroactively. See Hovnanian Fla., Inc. v. Div. of Fla. Land Sales & Condos., Dep’t of Bus. Regulation,
401 So.2d 851 (Fla. 1st DCA 1981). In Hovnanian, the court examined whether section
718.401, Florida Statutes, invalidated an escalation clause in a lease the association entered into prior to the statute’s enactment....
CopyPublished | Florida 3rd District Court of Appeal | 12 Fla. L. Weekly 2243, 1987 Fla. App. LEXIS 10231
the addition of section 711.231 [renumbered section
718.401(8)(a) ]. That amendment prohibited and declared
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 7690, 1990 WL 149818
...We find that the trial court erred both in declaring the escalation clauses void and in rescinding further enforcement of the recreational leases. The recent case of Association of Golden Glades Condominium Club, Inc. v. Security Management Cory.,
557 So.2d 1350 (Fla.1990) clarifies the enforceability of section
718.401(8)(a) and its subsequent changes....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 15694
DAUKSCH, Judge. At issue in this interlocutory appeal is an order granting Appellees' petition for withdrawal of rental deposits from the court registry pursuant to Section 718.401(4), Florida Statutes (1977)....
...e lessor under the recreation lease (Hillcrest Management Company). *548 Following the commencement of their action against Appellees, Appellants began depositing monthly rentals due under the recreation lease into the court registry as permitted by Section 718.401(4), Florida Statutes (1977). The monthly deposits amounted to $9,345. Some three months later, Appellees petitioned for withdrawal of the deposited funds from the registry, alleging that Section 718.401(4), Florida Statutes (1977) is unconstitutional and, alternatively, that the deposited funds are needed for the “payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintain and equipping the leased facilities.” The lower court declined to rule on the constitutionality of Section 718.401(4), Florida Statutes (1977), but ordered the clerk of the court to disburse to Appellees the sum of $5,130 each month from the monthly deposits made intó the registry by Appellants. The court specifically found that the evidence showed that the deposited funds were needed for purposes set forth in Section 718.401(4), Florida Statutes (1977)....
CopyPublished | Florida 4th District Court of Appeal | 1979 Fla. App. LEXIS 14547
...This interlocutory appeal relates to an order of September 17, 1977, entered in a condominium controversy. Appellants were plaintiffs below in a suit challenging a long-term recreational lease. Basically, the order in question provided for the deposit of rent monies pursuant to Section 718.401(4) Florida Statutes (1977) and withdrawal of the deposit for the purposes of paying mortgage expenses....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 15651
the deposit order was entered pursuant to Section 718.-401(4), Florida Statutes (1977). Appellant’s argument
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 3615, 2015 WL 1088449
...ge of the contract.
480 So.2d at 132-33 . When the twelve condominiums involved in that case were created, the declarations of condominium included language stating that the declarations were being enacted pursuant to the Condominium Act of Florida, section
718.401(8)(a), Florida Statutes (1983)....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1538, 1989 Fla. App. LEXIS 3650, 1989 WL 69073
...Thus, approximately fifteen years had passed since the leases were executed, thirteen years since the unit owners assumed control of the association, and ten years since the first escalation provision was enforced. The statute of limitations applied by the trial judge is five years. Appellants’ contention that section 718.401(8), Florida Statutes (1985) renders the subject lease provisions void and unenforceable as being against public policy fails in view of Fleeman v....
...commenced in 1975 and 1976. GLICKSTEIN and GUNTHER, JJ., concur. . In Sky Lake Gardens Recreation, Inc. v. Sky Lake Gardens Nos. 1, 3 and 4, Inc., the Third District Court of Appeal stated that: Chapter 88-225, Laws of Florida (codified at Fla.Stat. 718.4015 (1988)), which became effective October 1, 1988, repealed section 718.401(8) and replaced it with section 718.-4015. Section 718.4015(2) states that “[t]he application of this section [voiding rental escalation clauses] to contracts entered into pri- or to June 4, 1975, may not divest the parties of any benefits or obligations arising from the escalation of fees...
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 10744, 2015 WL 4249732
...of
the contract.
480 So. 2d at 132-33. When the twelve condominiums involved in that
case were created, the declarations of condominium included language stating that the
declarations were being enacted pursuant to the Condominium Act of Florida, section
718.401(8)(a), Florida Statutes (1983)....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 3449751, 2013 Fla. App. LEXIS 10940
...A final judgment declaring that title to the dock and boat slip vested in Mr. Balog was entered. It is this final judgment that the Sinatras currently appeal. On appeal, the Sinatras argue that the dock and boat slip do not fit the definition of a limited common element. They note that section 718.401(1), Florida Statutes (2005), provides that for a declaration of condominium to be effective on leased land, the lease must be for a minimum of fifty years....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 643, 1991 WL 9551
...We find that the trial court erred both in declaring the escalation clauses void and in rescinding further enforcement of the recreational leases. The recent case of Association of Golden Glades Condominium Club, Inc. v. Security Management Corp.,
557 So.2d 1350 (Fla.1990) clarifies the enforceability of section
718.401(8)(a) and its subsequent changes....
CopyPublished | Florida 3rd District Court of Appeal | 13 Fla. L. Weekly 231, 1988 Fla. App. LEXIS 278, 1988 WL 4039
...3d DCA 1987), and in Golden Glades Club Recreation Corp. v. Association of Golden Glades Condominium Club, Inc.,
385 So.2d 103 (Fla. 3d DCA 1980), both of which involve rent escalation clauses in condominium recreation leases and both of which hold that section
718.401(8), Florida Statutes (1985), previously section 711.231, Florida Statutes (1975), which invalidate rent escalation clauses in condominium recreation leases cannot be applied retroactively to invalidate the rent escalation clause at issue here. We affirm on those authorities. We further certify to the Florida supreme court the following question of great public importance: TO WHAT EXTENT DOES SECTION
718.401(8), FLORIDA STATUTES (1985), APPLY TO RENT ESCALATION CLAUSES ENTERED INTO BEFORE THE EFFECTIVE DATE OF THE STATUTE? Affirmed....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 1844, 1993 WL 36266
...Condominium Owners Organization of Century Village East,
556 So.2d 1197 (Fla. 4th DCA 1990), this court said: The dual purpose of the statute also lends support to the proposition that it should apply under these circumstances. One purpose of the statute is explained in Saul v. Basse,
375 So.2d 290 (Fla. 2d DCA 1979): [§
718.401(4)(1) ] contemplates the establishment of a secured fund which would be available to satisfy any monetary judgment obtained in favor of petitioners against respondents....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 878, 1990 WL 11125
HERSEY, Chief Judge. This litigation arose from a controversy between appellants as lessors of certain recreational facilities and appellees as tenants of those facilities. Pursuant to section 718.401(4)(a), Florida Statutes (1987), a nonfinal order required rent to be paid into the registry of the court. The main issue on appeal calls into question the constitutionality of section 718.401(4)(a), Florida Statutes (1987)....
...By the plain language of the statute, therefore, it applies to the controversy between these parties. The dual purpose of the statute also lends support to the proposition that it should apply under these circumstances. One purpose of the statute is explained in Saul v. Basse,
375 So.2d 290 (Fla. 2d DCA 1979): [§
718.401(4)(i) ] contemplates the establishment of....
...ion. We thus turn for guidance to Pomponio v. Claridge of Pompano Condominium, Inc.,
378 So.2d 774 (Fla.1979), which deals with this aspect of constitutional law. Pomponio was concerned with an earlier version of the statute now under consideration: section
718.401(4), Florida Statutes (1977)....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 2698, 1985 Fla. App. LEXIS 17152
...permitted amendments thereto in the manner in which they were in 1984 amended, the ground lease lessor, who drafted the leases, agreed to the terms of the amendments. Accordingly, the associations argue, the condominium ground leases are governed by section 718.401(8)(a), which was enacted in 1975, notwithstanding the establishment of the condominiums, and the escalation clauses in the ground leases, prior to 1975....
...The certificates of incorporation did not refer to the provisions of chapter 719, regarding cooperatives, now or hereafter in force, only to the general corporation laws. This is in contrast to Angora where a pre-1975 declaration of condominium and ground lease were found to be subject to section 718.401(8)(a) enacted in 1975 because the declaration referred to the “Condominium Act ......
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 12564, 20 Fla. L. Weekly Fed. D 75
...iled by the owners’ association. The holding in Century Village resulted in an amendment to that statute in 1979, allowing for the use of the registry in actions filed by the association, as well as by the unit owners. Ch. 79-166, Laws of Fla. See § 718.401(l)(d)l., Fla....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 25394
...r: 1. The statute of limitations operated to bar the proceedings. 2. The appellant had tendered full disclosure, thereby negating alleged unconscionable sales practices. 3. The various recreational leases were executed prior to the effective date of Section 718.401(8)(a), Florida Statutes (1981) which declared void as against public policy such rent escalation clauses....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 980, 1987 Fla. App. LEXIS 7560
...The Florida Supreme Court’s opinions in these cases were issued on the same day. In Cove Club Investors there was nothing to show that the petitioner, the lessor, who was not the developer of the condominium, had agreed to be bound by the Declaration or the Condominium Act. At issue in Cove Club Investors was whether section 718.401(8), Florida Statutes (1977), applied....
...In Cole , on the other hand, the declaration of condominium expressly incorporated the Condominium Act and subsequent amendments to that Act; the declaration incorporated the recreational lease, and the developer was the lessor. In that case, the applicability of both section 718.401(4) and section 718.401(8)(a) was at issue....
