CopyCited 5 times | Published | Supreme Court of Florida | 1992 WL 117265
...Miami, amici curiae, for Shirley Schrieber, Edith Pearl, Madeline Gordon and Florence Gesundheit. PER CURIAM. We review Maison Grande Condominium Ass'n v. Dorten, Inc.,
580 So.2d 859 (Fla. 3d DCA 1991), in which the district court expressly declared section
718.4015, Florida Statutes (Supp....
...ssor has not agreed to be bound by future changes in the condominium act? Maison Grande,
580 So.2d at 862. This case is controlled by Fleeman v. Case,
342 So.2d 815 (Fla. 1976), in which we held that the retroactive application of the predecessor to section
718.4015 would violate the contracts clause of the Florida and federal constitutions....
...*465 Florida law has long recognized "that a statute found on the statute books must be presumed to be valid and given effect until it is judicially declared unconstitutional." City of Sebring v. Wolf,
105 Fla. 516, 519,
141 So. 736, 737 (1932). Until the trial court declared section
718.4015 unconstitutional, the statute was valid and the escalation clause was void for public policy. We thus agree with Maison Grande that its nonperformance of the escalation clause up to the time the trial court declared section
718.4015 unconstitutional must be excused and that it is not liable to Dorten for attorneys' fees and costs associated with Dorten's effort to have section
718.4015 declared unconstitutional....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1991 WL 87231
...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
...lic 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...
...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....
...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...
...etent 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....
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...
...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....
...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....
CopyPublished | Supreme Court of Florida | 15 Fla. L. Weekly Supp. 117, 1990 Fla. LEXIS 312, 1990 WL 20552
...rceable. Accordingly, we approve the Third District Court of Appeal’s decision in this case. It is so ordered. EHRLICH, C.J., and McDONALD, GRIMES and KOGAN, JJ., concur. SHAW and BARKETT, JJ., concur in result only. This statute was renumbered as section 718.4015 in 1988 and has been amended since 1975....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1538, 1989 Fla. App. LEXIS 3650, 1989 WL 69073
...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 | United States Bankruptcy Court, M.D. Florida | 22 Fla. L. Weekly Fed. B 297, 2010 Bankr. LEXIS 148, 2010 WL 286615
...n rent by Merrill and Field. The Court is not ruling on the liabilities or defenses of the individual Unit Owners. As to the Association's argument that the rent escalation clause of the Lease is void and unenforceable as against public policy under Section 718.4015 of the Florida Statutes, the Court concludes that the application of this statute to the Lease is prohibited by the statute's own terms inasmuch as the Lease was entered into, and the Association was a party thereto, prior to June 4, 1975....
...Moreover, the Court concludes that the Association does not have standing to raise, and the Court declines to determine whether any Unit Owner who may have purchased a unit after June 4, 1975, can assert that a novation was made that would make the provision of Section 718.4015 applicable to them....
...even though the victimized parties [may] owe their predicament largely to their own stupidity and carelessness." See Peacock Hotel,
138 So. at 46. B. The Association Does Not Have Standing to Assert the Unenforceability of the Escalation Clause Under Fla. Stat. §
718.4015. Section
718.4015 of the Florida Statutes declares that certain rent escalation clauses in condominium leases are void. However, the Florida Supreme Court has held that Section
718.4015 of the Florida Statutes does not apply to recreational facilities leases that were entered into prior to the statute's enactment on June 4, 1975....
...rt's holding in Maison Grande and Golden Glades. As such, the Court concludes that there was no novation of the Lease as to the Association and the Association cannot benefit from any unenforceability of the rent escalation clause in the Lease under Section 718.4015 *710 of the Florida Statutes....
