CopyCited 12 times | Published | Court of Appeals for the Eleventh Circuit | 2010 U.S. App. LEXIS 15898, 2010 WL 2990019
...ently reside
in New Jersey. The district court granted the Virones’ motions for summary
judgment substantially for the reason that the Virones did not receive a disclosure
summary, which they were entitled to receive pursuant to Florida Statute §
720.401, or a printed property report pursuant to the Interstate Land Sales Full
Disclosure Act (“ILSFDA”), 15 U.S.C....
...Andrews Park.
As prospective parcel owners in a community subject to a homeowners’
association membership requirement, the Virones were entitled to receive a
“disclosure summary” before executing the contract of sale pursuant to Florida
Statute § 720.401(1)(a), in a form that is substantially similar to the one provided
in the statute as follows:
2
DISCLOSURE SUMMARY
FOR
(NAME OF COMMUNITY)
1....
...E
PROPERTY IS LOCATED, OR ARE NOT RECORDED AND
CAN BE OBTAINED FROM THE DEVELOPER.
DATE: PURCHASER:
PURCHASER:
Fla. Stat. § 720.401(1)(a)....
...The Virones never received a disclosure summary. On
January 30, 2008, more than two years after signing the purchase agreement, but
before closing, the Virones gave Princeton written notice of their intention to void
the purchase agreement pursuant to Florida Statute § 720.401(1)(c), which permits
a buyer to void the contract of sale if a disclosure summary is not provided prior to
closing....
...Florida, answered Princeton’s complaint, and filed a counterclaim with four
counts. The counts in the counterclaim were for: (I) Violation of the ILSFDA, (II)
Violation of the Florida Deceptive and Unfair Trade Practices Act, (III)
Cancellation pursuant to Florida Statute § 720.401, and (IV) Cancellation based on
availability of financing....
...Princeton was the “developer” and “parcel owner” of the lot on which their town
home was to be constructed, and therefore, Princeton was obligated to provide the
Virones with a disclosure summary substantially similar to the one provided in
Florida Statute § 720.401, but failed to do so. The district court granted the
Virones’ motion for summary judgment on Count III, finding that Princeton
violated § 720.401, and rendered Count IV and Princeton’s complaint moot....
...d apply
the same legal standards that governed the district court’s analysis. Capone v.
Aetna Life Ins. Co.,
592 F.3d 1189, 1194 (11th Cir. 2010) (citation omitted).
Because the district court’s finding that Princeton violated Florida Statute §
720.401 was based on statutory construction, we review the district court’s
determination de novo....
...rchase
agreement, we review its interpretation de novo. See World Rentals & Sales, LLC
v. Volvo Constr. Equip. Rents, Inc.,
517 F.3d 1240, 1244 (11th Cir. 2008).
III. DISCUSSION
A. Violation of Florida Statute §
720.401
The parties do not dispute that St. Andrews Park is governed by St. Andrews
Park Property Owners’ Association, and that Florida Statute §
720.401 applies.
Section
720.401(1)(a) requires that the “developer” or “parcel owner” provide the
7
buyer of a lot governed by a community association with a disclosure summary
identical to or substantially similar to the disclosure summary provided in the
statute....
...seller’s agent or representative written notice canceling the contract
within 3 days after receipt of the disclosure summary or prior to
closing, whichever occurs first. This right may not be waived by the
purchaser but terminates at closing.
Fla. Stat. § 720.401(1)(c). It is undisputed that the Virones were never presented a
disclosure summary by anyone, either before or after the purchase agreement was
executed.
In finding that Princeton violated § 720.401, the district court focused its
analysis principally on whether Princeton qualified as the “developer” or “parcel
owner,” the entities identified by the statute that must provide the disclosures....
...However, the Virones alternatively
8
argue, for the first time on appeal, that even if we find that Princeton does not meet
these definitions, the Virones are still entitled to void the purchase agreement
pursuant to § 720.401(1)(c).2 They argue that regardless of who was required to
provide a disclosure summary, the Virones never received the disclosures, and at
the heart of the statute is the importance that the buyers receive the disclosures
from someone. We agree with the Virones’ alternative argument on appeal.
Section 720.401(1)(c) makes clear that a buyer may void the contract of sale
against the seller, even though the seller may not always be the same entity as the
“developer” or “parcel owner” required to provide the disclosure summary under...
...Fabricating Co.,
764 F.2d 780, 781 (11th Cir. 1985) (per curiam) (“The decision whether to consider” an
argument raised for the first time on appeal “is left to the appellate court’s discretion”) (citation
omitted)).
9
720.401(1)(a). The statute, read plainly as a whole, indicates that a buyer who
does not receive the disclosures, regardless of who was required to provide them, is
entitled to void the contract of sale by giving notice to the seller under §
720.401(1)(c)....
...The contract she executed was substantially similar in its
terms, if not identical, to that executed by the Virones. See id. The buyer sued
Princeton in Florida state court alleging that she did not receive the disclosure
summary as required by Florida Statute § 720.401....
...r
10
right to void the contract of sale. Id. The trial court held that because the buyer
never received a disclosure summary, and closing had not occurred, she had the
right to void the contract under § 720.401(1)(c). Id. On appeal, the Florida court
affirmed, stating that “[s]ection 720.401 could not be clearer in its explanation that
if the disclosure summary is not provided to a prospective purchaser before the
purchaser executes a contract for the sale of property, the purchaser may void the
contract.” Id....
...the disclosure summary before executing the contract for sale or at
any time thereafter.
Id. at *4 (footnote omitted).
We agree with the reasoning of the Fourth District Court of Appeal of
Florida and believe that it is the correct interpretation of § 720.401....
...required disclosures before closing.
Thus, we affirm on grounds other than those provided by the district court
and need not decide whether Princeton should properly be labeled as the
“developer” or “parcel owner” for purposes of § 720.401....
...1989); Winter,
777 F.2d at 1449; Aldrich v.
McCulloch Props., Inc.,
627 F.2d 1036, 1043–44 (10th Cir. 1980)).
19
property report.6 For these reasons, we affirm the district court’s grant of summary
judgment to the Virones because Princeton violated Florida Statute §
720.401 and
the ILSFDA, 15 U.S.C. § 1703(a)(1).
AFFIRMED.
6
Princeton argues that the Virones cannot recover under the ILSFDA because it elected
its remedy under Florida Statute §
720.401....
...ed concurrently even to
final adjudication; but the satisfaction of the claim by one remedy puts an end to the other
remedies.” (citation omitted)). Here, recovery of damages under the ILSFDA is not inconsistent
with recovery under Florida Statute § 720.401. There is no evidence that the Virones’ claim for
damages under Florida Statute § 720.401 has been satisfied; therefore, the doctrine of election of
remedies is inapplicable.
20
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida
...at was to be used in their units, in violation of 16 C.F.R. § 460.16 , which constitute a per se FDUTPA violation. • Count XIV — Mona Lisa failed to disclose that the units were subject to a home owner’s association in violation of Fla. Stat. § 720.401 ....
...XI). Defendants are entitled to summary judgment as to all plaintiffs’ other FDUTPA claims in Counts XI, XII, and XIII because plaintiffs have failed to establish a predicate violation. Mona Lisa had No Disclosure Obligation under Florida Statute § 720.401(l)(a) (Count XIV) Plaintiffs claim in Count XIV that Mona Lisa violated Fla. Stat. § 720.401 (l)(a) by failing to include a disclosure summary revealing that each plaintiffs unit is located within a community subject to an association membership....
...23.” 277 *641 Neither party disputes that the Florida Condominium Act contained in Chapter 718 of the Florida Statutes applies to Mona Lisa because the development is a “condominium created and existing” in the state of Florida. 278 Therefore, § 720.401 simply does not apply. Even if it did, plaintiffs’ purchase contracts comply with the exception and include notice of an association membership in Section 15. 279 The disclosure need not be in a form substantially similar to that provided in § 720.401(l)(a)....
...ent District.” . Doc. No 61 at ¶ 67 in 9-ap-859. . 16 C.F.R. § 460.16 requires sellers of new homes to provide the thickness, and R-value of the insulation that will be installed in each part of the house. . Doc. No. 61 in 9-ap-859. . Fla. Stat. § 720.401 (l)(a). . Id. . Fla. Stat. § 720.401 (c)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 8198, 2010 WL 2292198
...of the townhome. In entering summary judgment, the trial court concluded that the buyer, Christine Morgan, had the right to void her contract for the purchase of a townhome from Princeton Homes because she did not receive a disclosure summary under section 720.401, Florida Statutes....
...Andrews Park has a property owners' association (the `POA') which is responsible for the maintenance and upkeep of the community and its facilities, and which assesses each homeowner in advance on a quarterly basis." However, it is undisputed that Morgan never received a disclosure summary pursuant to section 720.401, Florida Statutes....
...In response, Princeton Homes refused to refund the deposit, but offered to eliminate the HOA assessment. Morgan then filed suit against Princeton Homes, seeking a return of her deposit on the ground that she did not receive a disclosure summary pursuant to the requirements of section 720.401....
...After discovery was completed, Morgan moved for summary judgment on her claim to recover the earnest money deposit. At the hearing on the motion for summary judgment, the trial court noted that there was no dispute that Morgan was not given the disclosure summary required by section 720.401. The trial court concluded that because Morgan was never provided with the required disclosure summary under section 720.401, and because the closing on the property had not occurred, Morgan had the right to void the contract under the statute....
..."[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact." Albelo v. S. Bell,
682 So.2d 1126, 1129 (Fla. 4th DCA 1996). On appeal, Princeton Homes primarily argues that it had no obligation to provide a disclosure summary under section
720.401 because it was neither the owner nor the developer of the property at the time it entered into the contract with the purchaser. In addressing this argument, we begin with an examination of the statute. Section
720.401, Florida Statutes, sets forth certain disclosures that must be provided to prospective purchasers of residential parcels subject to a requirement of membership in a homeowners' association. Section
720.401(1)(a) provides that "[a] prospective parcel owner in a community must be presented a disclosure summary before executing the contract for sale." The disclosure summary must be in a form substantially similar to a form provided in the statute. §
720.401(1)(a), Fla. Stat. (2005). After setting out the disclosure summary form, section
720.401(1)(a) states the following: *210 The disclosure must be supplied by the developer, or by the parcel owner if the sale is by an owner that is not the developer....
...Any contract or agreement for sale shall refer to and incorporate the disclosure summary and shall include, in prominent language, a statement that the potential buyer should not execute the contract or agreement until they have received and read the disclosure summary required by this section. § 720.401(1)(a), Fla. Stat. (2005) (emphasis added). Section 720.401(1)(b) provides: (b) Each contract entered into for the sale of property governed by covenants subject to disclosure required by this section must contain in conspicuous type a clause that states: IF THE DISCLOSURE SUMMARY REQUIRED BY SECTION 720.401, FLORIDA STATUTES, HAS NOT BEEN PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT IS VOIDABLE BY BUYER BY DELIVERING TO SELLER OR SELLER'S AGENT OR REPRESENTATIVE WRITTEN NOTICE OF THE BUYER'S INTENTION TO CANCEL WITHIN 3 DAYS AFTER RECEIPT OF THE DISCLOSURE SUMMARY OR PRIOR TO CLOSING, WHICHEVER OCCURS FIRST. ANY PURPORTED WAIVER OF THIS VOIDABILITY RIGHT HAS NO EFFECT. BUYER'S RIGHT TO VOID THIS CONTRACT SHALL TERMINATE AT CLOSING. Section 720.401(1)(c), in turn, provides: (c) If the disclosure summary is not provided to a prospective purchaser before the purchaser executes a contract for the sale of property governed by covenants that are subject to disclosure pursuant to this...
...or the seller's agent or representative written notice canceling the contract within 3 days after receipt of the disclosure summary or prior to closing, whichever occurs first. This right may not be waived by the purchaser but terminates at closing. § 720.401(1)(c), Fla. Stat. (2005). As noted above, section 720.401(1)(a) includes language providing that "the disclosure must be supplied by the developer, or by the parcel owner if the sale is by an owner that is not the developer." (Emphasis added)....
...Further, "[w]hen the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." Daniels v. Fla. Dep't of Health,
898 So.2d 61, 64 (Fla.2005). A careful examination of section
720.401 in its entirety sheds light on the legislative intent behind the statute. Section
720.401(1)(a) unequivocally mandates that "[a] prospective parcel owner in a community must be presented a disclosure summary before executing the contract for sale." (Emphasis added). Section
720.401 could not be clearer in its explanation that if the disclosure summary is not provided to a prospective purchaser before the purchaser executes a contract for the sale of property, the purchaser may void the contract "within 3 days after receipt of the disclosure summary or prior to closing, whichever occurs first." §
720.401(1)(c), Fla. Stat. Moreover, section
720.401(1)(b) requires each contract governed by the statute to contain a specific clause, in conspicuous type, explaining the buyer's right to void the contract under section
720.401 if the required disclosure summary has not been provided. Thus, the purpose of this statutory right of rescission, and of section
720.401 more generally, is to ensure that prospective purchasers of properties in homeowners' associations will receive a disclosure summary....
...as the closing had not occurred and she never received a disclosure summary prior to voiding the contract. Princeton Homes also argues that Morgan had knowledge of all or substantially all of the items included in the disclosure summary required by section 720.401, and thus maintains that Morgan should not be permitted to void the contract. This argument is unavailing. The legislature made clear that the statutory right to *212 void the contract "may not be waived by the purchaser but terminates at closing." § 720.401(1)(c), Fla....
...Under the statute, Morgan's right to rescind the contract did not depend upon her level of knowledge concerning the matters that would have been disclosed in the disclosure summary. Finally, without further comment, we reject the argument that Princeton Homes cured any deficiency regarding section 720.401 by offering to exempt Morgan from paying any assessments relating to the homeowners' association. In sum, because Morgan was never provided with the required disclosure summary under section 720.401 and because closing on the property had not occurred, Morgan had the right to rescind the contract when she provided written notice to Princeton Homes in November 2007 that she was voiding the contract....
...was executed, paragraph 11 of the contract provided that Princeton Homes would convey good and marketable title to the purchaser's home at the closing. [2] The parties dispute whether Princeton Homes constituted a "developer" as that term is used in section 720.401....
...y, as the seller of the property it should have nonetheless ensured that the developer or the then-current parcel owner supplied the required disclosure summary to the buyer, and should have incorporated the disclosure summary into the contract. See § 720.401(1)(a), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 9106, 33 Fla. L. Weekly Fed. D 1609
...DaSilva, purchasers of a single-family home, filed this lawsuit in Indian River County against the seller, Shelby Homes at Millstone, Inc., alleging that Shelby Homes violated the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq., as well as the disclosure summary requirement of section 720.401, Florida Statutes....
CopyCited 1 times | Published | District Court, M.D. Florida | 2009 U.S. Dist. LEXIS 130459, 2009 WL 7231455
...§ 1703(d)(1) based on the failure to provide a legal description of the property; and (4) the "failure to return even five percent (5%) of the purchase price upon demand," allegedly a violation of 15 U.S.C. § 1703(d). Count II, encompassed by supplemental jurisdiction, alleges a violation of Florida Statute § 720.401....
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 1859032, 2012 Fla. App. LEXIS 8134
PER CURIAM. The buyers, Harvey Tempel and Lisa A. Tempel, appeal the trial court’s order in which the court determined that the seller, appellee Southern Homes of Palm Beach, L.L.C., substantially complied with the requirements set forth in section 720.401, Florida Statutes (2011). We conclude that the subject residential purchase and sale agreement, along with pertinent provisions of the accompanying addenda, is not in compliance with the requirements of section 720.401, and therefore reverse....
...They filed a two count complaint against the seller, seeking to void the agreement. In count I, the seller sought revocation of the agreement based upon the Interstate Land Sales Full Disclosure Act, 15 USC § 1701 et. seq. In count II, they sought to void the agreement based upon section 720.401, Florida Statutes (2011), arguing that the disclosure summary failed to comply with the requirements of section 720.401....
...The buyers moved for summary judgment, and the seller cross-claimed as to count II and moved for summary judgment on count I. The court entered summary judgment in favor of the seller on counts I and II, and this order forms the basis of this appeal. Section 720.401 requires the seller to provide a prospective buyer with a disclosure summary, if the property is located within a community subject to association *850 membership. The disclosure summary-must be presented to the prospective buyer prior to the execution of the contract for sale, see § 720.401(l)(a), and it must be in a form that is substantially similar to the following form: DISCLOSURE SUMMARY FOR (NAME OF COMMUNITY) [[Image here]] (6) THERE MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS’ ASSOCIATION. IF APPLICABLE, THE CURRENT AMOUNT IS $_PER_ See § 720.401(l)(a)(6), Fla. Stat. (2011). The Florida legislature amended section 720.401 in 2004....
...ATION. (If such obligation exists, then the amount of the current obligation shall be set forth.) See § 689.26(l)(a), Fla. Stat. (2003). The buyers argue that the disclosure summary fails to summarize information consistent with the requirements of section 720.401 as amended....
...ent assessment and the time period the assessment covered. Furthermore, the buyers argue the court erred when it searched outside of the disclosure summary for information required to be disclosed. We agree. We first consider the express language of section 720.401(a)(l)(6)....
...v. Jacobs,
820 So.2d 297, 308 (Fla.2002); Turnberry Investments, Inc. v. Streatfield,
48 So.3d 180, 182 (Fla. 3d DCA 2010). Furthermore, an unambiguous statute must be given its plain and obvious meaning. See Turnberry Investments,
48 So.3d at 182 . Section
720.401(a)(1)(6) clearly and unambiguously states that a disclosure summary must include, if applicable, the current amount for membership in the homeowners’ association and the time period which the amount covers....
...It is undisputed that the disclosure summary itself does not contain the current amount due for membership in the association and the period which the amount covers. The seller argues, however, that the agreement is in a form substantially similar so as to satisfy the requirements of section 720.401. The court agreed that Addendum H, along with pertinent provisions of the agreement, did not violate section 720.401. We cannot agree with the court’s conclusion. The only reasonable conclusion to be drawn from the omission of the assessment amount and the time period to be covered is that the disclosure summary itself constitutes a violation of section 720.401....
...See Turnberry Investments,
48 So.3d at 182 . See also Metropolitan Dade County v. Milton,
707 So.2d 913, 915 (Fla. 3d DCA 1998). The seller further argues that it could not provide an exact amount of rent or land use fees, consistent with the requirements of section
720.401(l)(a)(6), because there was “no obligation to pay rent or land use fees for recreational or other commonly used facilities at the time of the [agreement].” This is of no consequence because the statute does not excuse a seller from its obligation to state the current assessment amount and the time period with specificity. Thus, the seller’s failure to provide the buyers with the information consistent with the requirements of section
720.401 renders the agreement voidable by the buyers. We therefore reverse. Reversed. . Paragraph 7.4 of the Community Addendum also references section 689.26, Florida Statutes (2003), and its requirements in detail. This is the statute that preceded section
720.401....
CopyPublished | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 10568, 2010 WL 2836324
...4. As a condition of ownership, buyers were required to become members of a condominium and homeowner association. Almost three years later, Florida Farm sought to cancel the contract because it did not receive a “Disclosure Summary” pursuant to section 720.401 Florida Statutes (2004), which governs homeowners associations. As such, Florida Farm claimed to be entitled to void the purchase agreement under section 720.401(l)(c), which allows a prospective buyer to rescind a contract for up to three days after the receipt of the Disclosure Summary. 360 Developers argued that it was exempt from section 720.401 requirements, pursuant to subsection (2), and that it otherwise satisfied the disclosure requirements of section 718, Florida Statutes (2004)....
...Chapter 720, however, contemplates situations where a homeowner association is part of a community governed by other statutes and, when it is, *812 the chapter specifically authorizes alternative disclosures pursuant to those other statutes. Thus, immediately following the disclosure requirements set forth in section 720.401, subsection (2) identifies two instances when the disclosure summary form is not required: This section does not apply to any association regulated under Chapter 718, Chapter 719, Chapter 721, or Chapter 723; and also does not apply if disclosure regarding the association is otherwise made in connection with the requirements of Chapter 718, Chapter 719, Chapter 721, or Chapter 723. We read this to mean that section 720.401does not apply, in pertinent part, (1) when the association is regulated under Chapter 718; and (2) if disclosure is otherwise made in connection with Chapter 718. We therefore conclude that 360 Developers was not subject to the requirements of section 720 because the unambiguous language of subsection (2) specifically says that the section does not apply. The dissent points out that “[sjection 720.401is a consumer protection statute.” However well intended, the language of the statutes does not require disclosures under both Chapter 718 and 720. To the contrary, it specifically states that section 720.401“does not apply if disclosure regarding the association is otherwise made in connection with the requirements of Chapter 718.......
CopyPublished | Florida 3rd District Court of Appeal
...a disclosure containing
nearly identical language in sales contracts involving property subject to
homeowners’ associations membership: “BUYER’S RIGHT TO VOID THIS
CONTRACT SHALL TERMINATE AT CLOSING.” See Fla. Stat. §
720.401(1)(b) (2010)....
