(1) A cooperative may be created on lands held under lease or may include recreational facilities or other common elements or commonly used facilities on a leasehold, if, on the date the first unit is conveyed by the developer to a bona fide purchaser, the lease has an unexpired term of at least 50 years. However, if the cooperative constitutes a timeshare cooperative created pursuant to chapter 721, the lease must have an unexpired term of at least 30 years. If rent under the lease is payable by the association or by the unit owners, the lease shall include the following requirements:
(a) The leased land must be identified by a description that is sufficient to pass title, and the leased personal property must be identified by a general description of the items of personal property and the approximate number of each item of personal property that the developer is committing to furnish for each room or other facility. In the alternative, the personal property may be identified by a representation as to the minimum amount of expenditure that will be made to purchase the personal property for the facility. Unless the lease is of a unit, the identification of the land shall be supplemented by a survey showing the relation of the leased land to the land included in the common areas. This provision shall not prohibit adding additional land or personal property in accordance with the terms of the lease, provided there is no increase in rent or material increase in maintenance costs to the individual unit owner.
(b) The lease shall not contain a reservation of the right of possession or control of the leased property by the lessor or any person other than unit owners or the association, and shall not create rights to possession or use of the leased property in any parties other than the association or unit owners of the cooperative to be served by the leased property, unless the reservations and rights created are conspicuously disclosed. Any provision for use of the leased property by anyone other than unit owners of the cooperatives to be served by the leased property shall require the other users to pay a fair and reasonable share of the maintenance and repair obligations and other exactions due from users of the leased property.
(c) The lease shall state the minimum number of unit owners that will be required, directly or indirectly, to pay the rent under the lease and the maximum number of units that will be served by the leased property. The limitation of the number of units to be served shall not preclude enlargement of the facilities leased and an increase in their capacity, if approved by the association operating the leased property after unit owners other than the developer have assumed control of the association. This paragraph does not apply if the lessor is the Government of the United States or the State of Florida or any political subdivision thereof or any agency or any political subdivision thereof.
(d)1. 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 any issue or interpose any defenses, legal or equitable, that he or she or it may have with respect to the lessor’s obligations under the lease. If the unit owner or the association initiates any action or interposes any defense other than payment of rent under the lease, the unit owner or the association shall, upon service of process upon the lessor, pay into the registry of the court any allegedly accrued rent and the rent which accrues during the pendency of the proceeding, when due. If the unit owner or the association fails to pay the rent into the registry of the court, it shall constitute an absolute waiver of the unit owner’s or association’s defenses other than payment, and the lessor shall be entitled to default. The unit owner or the association shall notify the lessor of any deposits. When the unit owner or the association has deposited the required funds into the registry of the court, the lessor may apply to the court for disbursement of all or part of the funds shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities or necessary for the payment of other expenses arising out of personal hardship resulting from the loss of rental income from the leased facilities. The court, after an evidentiary hearing, may award all or part of the funds on deposit to the lessor for such purpose. The court shall require the lessor to post bond or other security, as a condition to the release of funds from the registry, when the value of the leased land and improvements, apart from the lease itself, is inadequate to fully secure the sum of existing encumbrances on the leased property and the amounts released from the court registry.
2. When the association or unit owners have deposited funds into the registry of the court pursuant to this subsection, and the unit owners and association have otherwise complied with their obligations under the lease or agreement, other than paying rent into the registry of the court rather than to the lessor, the lessor cannot hold the association or unit owners in default on their rental payments nor may the lessor file liens or initiate foreclosure proceedings against unit owners. If the lessor, in violation of this subsection, attempts such liens or foreclosures, then the lessor may be liable for damages plus attorney’s fees and costs which the association or unit owners incurred in satisfying those liens or foreclosures.
3. Nothing in this paragraph shall affect litigation commenced prior to October 1, 1979.
(e) If the lease is of recreational facilities or other commonly used facilities that are not completed, rent shall not commence until some of the facilities are completed. Until all of the facilities leased are completed, rent shall be prorated and paid only for the completed facilities in the proportion that the value of the completed facilities bears to the estimated value, when completed, of all of the facilities that are leased. The facilities shall be complete when they have been constructed, finished, and equipped and are available for use.
(f)1. A lease of recreational or other commonly used facilities entered into by the association or unit owners prior to the time the control of the association is turned over to unit owners other than the developer shall grant to the lessee an option to purchase the leased property, payable in cash on any anniversary date of the beginning of the lease term after the 10th anniversary, at a price then determined by agreement. If there is no agreement as to the price, then the price shall be determined by arbitration. This paragraph shall be applied to contracts entered into on, before, or after January 1, 1977, regardless of the duration of the lease.
2. If the lessor wishes to sell his or her interest and has received a bona fide offer to purchase it, the lessor shall send the association and each unit owner a copy of the executed offer. For 90 days following receipt of the offer by the association or unit owners, the association or unit owners have the option to purchase the interest on the terms and conditions in the offer. The option shall be exercised, if at all, by notice in writing given to the lessor within the 90-day period. If the association or unit owners do not exercise the option, the lessor shall have the right, for a period of 60 days after the 90-day period has expired, to complete the transaction described in the offer to purchase. If for any reason such transaction is not concluded within the 60 days, the offer shall have been abandoned, and the provisions of this subsection shall be reimposed.
3. The option shall be exercised upon approval by owners of two-thirds of the units served by the leased property.
4. The provisions of this paragraph shall not apply to a nonresidential cooperative and shall not apply if the lessor is the Government of the United States or the State of Florida or any political subdivision thereof or, in the case of an underlying land lease, a person or entity which is not the developer or directly or indirectly owned or controlled by the developer and did not obtain, directly or indirectly, ownership of the leased property from the developer.
(g) The lease or a subordination agreement executed by the lessor must provide either:
1. That any lien which encumbers a unit for rent or other moneys or exactions payable is subordinate to any mortgage held by an institutional lender, or
2. That, upon the foreclosure of any mortgage held by an institutional lender or upon delivery of a deed in lieu of foreclosure, the lien for the unit owner’s share of the rent or other exactions shall not be extinguished but shall be foreclosed and unenforceable against the mortgagee with respect to that unit’s share of the rent and other exactions which mature or become due and payable on or before the date of the final judgment of foreclosure, in the event of foreclosure, or on or before the date of delivery of the deed in lieu of foreclosure. The lien may, however, automatically and by operation of the lease or other instrument, reattach to the unit and secure the payment of the unit’s proportionate share of the rent or other exactions coming due subsequent to the date of final decree of foreclosure or the date of delivery of the deed in lieu of foreclosure.
This paragraph does not apply if the lessor is the Government of the United States or the State of Florida or any political subdivision thereof or any agency or political subdivision thereof.
(2) If rent under the lease is a fixed amount for the full duration of the lease, and the rent thereunder is payable by the association or the unit owners, the division director shall have the discretion to accept alternative assurances sufficient to secure the payment of rent, including, but not limited to, annuities with an insurance company authorized to do business in this state, the beneficiary of which shall be the association, or, cash deposits in trust, the beneficiary of which shall be the association, which deposit shall be at an amount sufficient to generate interest sufficient to meet lease payments as they occur. If alternative assurances are accepted by the division director, the following apply:
(a) Disclosures contemplated by paragraph (1)(b), if not contained within the lease, may be made by the developer.
(b) Disclosures as to the minimum number of unit owners that will be required, directly or indirectly, to pay the rent under the lease and the maximum number of units that will be served by the leased property, if not contained in the lease, may be stated by the developer.
(c) The provisions of paragraphs (1)(d) and (e) apply, but need not be stated in the lease.
(d) The provisions of paragraph (1)(g) do not apply.
...Duignan of Johnson, Anselmo, Murdoch, Burke & George, Fort Lauderdale, for Respondent. GRIMES, Chief Justice. We have for review Moonlit Waters Apartments, Inc. v. Cauley, 651 So.2d 1269 (Fla. 4th DCA 1995), wherein the district court of appeal certified the following question to be of great public importance: WHETHER SECTION 719.401(1)(f)1 APPLIES TO AN EXISTING LONG TERM GROUND LEASE ENTERED INTO AT ARM'S LENGTH UPON WHICH ALL IMPROVEMENTS OF A COOPERATIVE APARTMENT COMPLEX HAVE BEEN CONSTRUCTED....
...adjusted at ten-year intervals based upon changes in the consumer price index. Joseph J. Cauley is lessor of the property, as trustee for the owner. In 1991, Moonlit Waters informed Cauley that it wished to purchase the entire property, pursuant to section 719.401(1)(f)1, Florida Statutes (1991), which requires a lease of recreational or other commonly used facilities, entered into before the unit owners receive control of the association, to include an option to purchase. Cauley refused to enter into negotiations with Moonlit Waters to sell the property. Moonlit Waters filed a motion to appoint an arbitrator to decide upon a sales price for the property, pursuant to section 719.401(1)(f)1....
...The Fourth District Court of Appeal declined to reach the constitutional issue, finding that the statute applies only to a lease of recreational or other commonly used facilities, and does not apply to an all-encompassing underlying land lease. Moonlit Waters Apartments, Inc., 651 So.2d at 1270. Section 719.401(1)(f)1 provides in pertinent part: "A lease of recreational or other commonly used facilities entered into by the [cooperative] association or unit owners prior to the time the control of the association is turned over to unit owners other than the developer shall grant to the lessee an option to purchase the leased property... ." *900 In construing a statute, we look first to the statute's plain meaning. Lamont v. State, 610 So.2d 435 (Fla. 1992). Section 719.401(1)(f)1 applies to leases "of" recreational or other commonly used facilities, not to land leases "including" recreational or other commonly used facilities. The language of section 719.401(1)(f)1 is unambiguous. Section 719.401(1)(f)1 does not apply to land leases. The subject lease is a land lease encompassing all of the Moonlit Waters development, and is therefore beyond the scope of section 719.401(1)(f)1. Our conclusion is buttressed by the fact that section 719.4015(1), Florida Statutes (1993), specifically declares void, for public policy reasons, "the inclusion or enforcement of escalation clauses in land leases or other leases or agreements for recreation facilities, land or other commonly used facilities." Section 719.401(1)(f)1 makes no reference to land leases....
Cited 4 times | Published | Supreme Court of Florida | 1990 WL 20559
...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 unit owners who...
...ial 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 l...
...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......
Cited 2 times | Published | Florida 4th District Court of Appeal | 1995 WL 106245
...Burke of Johnson, Anselmo, Murdoch, Burke & George, Fort Lauderdale, for appellee. STONE, Judge. Appellant, the governing association of a cooperative apartment building, appeals a judgment in favor of the defendant-landowner. Appellant contends that section 719.401(1)(f)(1), Florida Statutes, providing for an option to purchase, applies to the underlying 99-year land lease upon which the subject cooperative was constructed....
...There is no indication that the lease was anything other than an arm's length transaction between unrelated parties. The lease does not include an option for the lessee to purchase the land. In 1991, Moonlit Waters notified Cauley that it wished to purchase his interest in the lease, pursuant to a recent amendment to section 719.401, Florida Statutes. Section 719.401(6)(a), which has been redesignated as section 719.401(1)(f)1, required that "[a] lease of recreational or other commonly used facilities " entered into before the unit owners receive control of the association include an option to purchase....
...State Dep't of Agriculture and Consumer Servs., 572 So.2d 977 (Fla. 4th DCA 1990); Hancock Advertising, Inc. v. Department of Transp., 549 So.2d 1086 (Fla. 3d DCA 1989), rev. denied, 558 So.2d 17 (Fla. 1990). Chapter 88-225, Laws of Florida, not only added the above sentence to former § 719.401(6)(a), it also revised other portions of chapters 718 and 719, Florida Statutes. It created sections 718.4015 and 719.4015, which declare it to be the public policy of the state to prohibit "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 cooperatives, declaring such clauses void. §§ 718.4015(1), 719.4015(1), Fla....
...lusio alterius, the mention of one thing implies the exclusion of another. See Devin v. City of Hollywood, 351 So.2d 1022, 1025 (Fla. 4th *1271 DCA 1976). It therefore appears that the failure to add the specific term "land leases" to the wording in section 719.401(6)(a), now section 719.401(1)(f)1, was intentional. [1] Therefore, we affirm and certify the following question to the supreme court as one of great public importance: WHETHER SECTION 719.401(1)(f)1 APPLIES TO AN EXISTING LONG TERM GROUND LEASE ENTERED INTO AT ARM'S LENGTH UPON WHICH ALL IMPROVEMENTS OF A COOPERATIVE APARTMENT COMPLEX HAVE BEEN CONSTRUCTED....
(1983), as to the condominium associations and section 719.-401(8) as to the cooperative associations. Those
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