CopyCited 20 times | Published | Florida 2nd District Court of Appeal | 1990 WL 7521
...burden" because the Florida Mobile Home Act seeks to redress "unreasonable" rental charges, not merely those denominated "unconscionable" as evidenced by the use of the former term in various places throughout the Act. See, e.g., §§
723.031(7) and
723.037(4)(a)....
...In a substantial reworking of the statutes in 1984, all the relevant sections were placed into a separate chapter, now chapter 723. Many new procedures were instituted including mediation or arbitration. Within chapter 723, there are several sections which do include the term "unreasonable." For example, section
723.037 provides that if, after informal mediation about lot rental increases, there has resulted no successful conclusion, and 51% of the park tenants state in writing that the rent increase is unreasonable, the tenants are entitled to have the dispute submitted to formal mediation pursuant to section
723.038....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...This section, in conjunction with Rule 7D-31.01(6), Florida Administrative Code, requires that the prospectus disclose each type of charge to be paid by the home owner and a description of all factors which may result in an increase in those charges to the home owners. Section 723.037, Florida Statutes, which governs actual lot rental increase proposals, contains the 90-day advance notice requirement prior to any reduction in services, increase in rent, or change in rules and regulations. See also, Rule 32.02, Florida Administrative Code (governing the Notice of Lot Rental Increase and providing that only those factors specifically identified in the prospectus may form the basis of a proposed rate increase). According to Section 723.037(2), once the written notice is given by the park owner, a committee or a home owners' association shall meet with the park owner to discuss the intended change and, according to subsection (3), within 15 days of the meeting, the home...
...e. According to the Act, if both parties subsequently agree, arbitration rather than mediation may be requested. Division rules regulating mediation and arbitration are contained in Chapters 7D-32 and 7D-33, Florida Administrative Code. According to Section 723.037(5), no dispute regarding lot rental increases, reduction in services or utilities, or proposed changes in rules or regulations may be filed in the circuit court unless and until a request for mediation or arbitration has been submitted to the Division....
...agreement (Section
723.031); (5) provisions for unconscionable lot rental agreements (Section
723.033); (6) mediation or arbitration provisions concerning lot rental increases, reduction in services or utilities, or changes in rules or regulations (Section
723.037); and (7) dispute settlements (Section
723.038)....
...Notwithstanding prospectus approval, park owners must still comply with the various provisions of the Act. Under the statute, the Division may make investigations into allegations of noncompliance with the Act, and rental increases or reduction of services remain subject to Section 723.037, Florida Statutes....
...ion in services, or actual change in rules, the park owner is to give written *434 notice to each mobile homeowner at least 90 days prior to any lot rental increase, reduction in services or utilities, or change in rules or regulations. According to Section 723.037(2), Florida Statutes, once the written notice is given by the park owner, a committee or a homeowners' association shall meet with the park owner to discuss the intended changes....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 1619
...After Vidibor filed a motion to tax costs, the rest of the tenants took a voluntary dismissal, without prejudice. We reverse. Pursuant to section
723.068, Florida Statutes (1985), attorney's fees are specifically available to "the prevailing party": Except as provided in s.
723.037, in any proceeding between private parties to enforce provisions of this chapter, the pre vailing party is entitled to a reasonable attorney's fee. Section
723.037(6) provides that upon proper request, a party shall not be entitled to attorney's fees if that party refuses to agree to mediate or arbitrate....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 4291, 2010 WL 1233481
..., alternatively, (1) unenforceable, (2) only required it to provide access to basic cable television but not pay each lot owner's cable programming, (3) only required it to provide basic service programming as defined by the FCC, or (4) declare that section 723.037, Florida Statutes (2003), applied to the parties and permitted T & W to reduce or eliminate the cable television service it was providing....
...nt III. On count II, the trial court ruled that the amendment to the deed of restrictions was valid and that the Homeowners' Association, not HERC, had the power to approve the sale or transfer of any lot. As to count III, the trial court ruled that section 723.037 applied to Hollywood Estates....
...5th DCA 2007); Colonel v. Meyerson,
921 So.2d 690, 691 (Fla. 5th DCA 2006). However, when entitlement rests on the interpretation of a statute or contract, our review is de novo. Hinkley,
971 So.2d at 956. Section
723.068 states, "[e]xcept as provided in s.
723.037, in any proceeding between private parties to enforce provisions of this chapter, the prevailing party is entitled to a reasonable attorney's fee." It is the requirement that the action "enforce" provisions of chapter 723 that leads us to conclude that neither party is entitled to an award of attorney's fees....
...Consequently, this count did not seek to enforce any provision of chapter 723 and Appellees were not entitled to attorney's fees. As previously set forth, Count III pled four alternative forms of relief. However, the only relief T & W argued and sought at the summary judgment hearing was a declaration that the procedure in section 723.037 applied to the parties and allowed it to reduce or eliminate the cable television services it was providing. The trial court framed the issue as "whether or not [T & W] can invoke the procedure ... in section 723.037," and ruled that it could. Despite this favorable ruling, the trial court concluded that T & W was not the prevailing party because Appellees conceded that section 723.037 applied and it did not prevail on obtaining the other alternative relief it requested. This conclusion was incorrect for two reasons. First, whether section 723.037 applied and T & W could use its procedure was not conceded by Appellees....
...vailing party. This is because a prevailing party is one who prevails on the "significant issues tried before the court." Moritz v. Hoyt Enters., Inc.,
604 So.2d 807, 810 (Fla.1992). The only issue tried concerning count III was the applicability of section
723.037, and T & W's right to use its procedure to reduce or eliminate cable television services. The trial court ruled that section
723.037 applied. Consequently, Appellees did not prevail on count III, and the trial court erred in finding that they were entitled to attorney's fees as the prevailing party. The trial court's declaration that T & W could use the procedure in section
723.037 does not compel the conclusion that T & W is entitled to prevailing party attorney's fees, pursuant to section
723.068. The primary issue that was litigated concerning count III was the procedure T & W was required to use in order to reduce or eliminate the cable television services it was providing. T & W argued that section
723.037 set forth the proper procedure. Appellees asserted that the deed of restrictions controlled. Consistent with its argument to the trial court, T & W contends it was the prevailing party, now entitled to attorney's fees, on the issue "of the application of section
723.037 to reduce or change services." The flaw with this argument is that section
723.037 does not provide for reducing, changing, or eliminating any services. If a mobile home park owner wants to increase the lot rental amount, reduce services or utilities, or change the mobile home park's rules and regulations, the Legislature has created a dispute resolution process. See §
723.037. This process mandates the park owner notify the affected homeowners of the proposed change. §
723.037(1). Subsequently, the park owner and a committee formed by the affected homeowners meet to discuss the proposed change. §
723.037(4)(a). If an agreement cannot be reached, then either party can petition the Department of Professional and Business Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes, to mediate the dispute. §§
723.037(5)(a), (b). Alternatively, either *303 party may file suit. The refusal of a party to mediate forecloses any recovery of that party's attorney's fees pursuant to chapter 723. See §
723.037(6)....
...T & W's argument might have persuasive force if the crux of the dispute was whether the parties had to engage in the statutory dispute resolution process. However, the issue was whether T & W could reduce or eliminate providing cable television services by using the procedure in section 723.037. By its express terms, section 723.037 neither authorizes, nor prohibits a park owner from reducing or eliminating the services it provides to the homeowners....
...attempt to informally resolve any dispute arising from a proposed lot rental increase, reduction of service or utilities, or change in the mobile home park's rules and regulations. [2] Thus, obtaining a declaration that it could use the procedure in section 723.037 granted T & W only the right to begin the dispute resolution process....
...allenged. [2] Our conclusion is bolstered by the Legislature's subsequent amendment providing that the "meetings and discussions are intended to be in the nature of settlement discussions prior to the parties proceeding to mediation of any dispute." § 723.037(4)(e), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1999 Fla. App. LEXIS 12414, 1999 WL 741164
...ors of the homeowners' association as required by Florida law. [1] Upon motion filed by the home owners, the trial court entered summary judgment against the park owner, finding that the park owner had failed to comply with the notice requirement of section 723.037(1)....
...The park owner thereafter filed this negligence action against the law firm alleging legal malpractice in relation to the home owners' class action suit. The complaint alleged that the law firm was negligent in failing to prepare the notice of rental increases in compliance with the requirements set forth in section 723.037(1), Florida Statutes, and that the law firm's negligence caused the park owner damage including lost rents, past and future, to which it would have otherwise been entitled....
...As noted above, the underlying class action lawsuit which precipitated the instant action for legal malpractice centered on the home owners' claim of improper notice of *504 rent increases. We know from the only case law in existence at the time the class action suit was tried that the notice requirements contained in section 723.037(1), Florida Statutes, were to be strictly construed....
...order entered in the class action suit, the law firm is not able to show that it was prejudiced by the ruling. This is because in this appeal the law firm failed to raise for our consideration the issue of whether the trial court properly construed section 723.037(1), and whether the statute requires strict compliance....
...that the verdict was not contrary to the manifest weight of the evidence, and therefore this contention is also without merit. See Winn-Dixie Stores, Inc. v. Robinson,
472 So.2d 722 (Fla.1985). AFFIRMED. COBB and THOMPSON, JJ., concur. NOTES [1] See §
723.037(1), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1992 WL 26457
...Thereafter, all terms shall be for a minimum of 1 year. (5) The rental agreement shall contain the lot rental amount and services included. An increase in lot rental amount upon expiration of the term of the lot rental agreement shall be in accordance with s. 723.037 or s....
...(9) No rental agreement shall provide for the eviction of a mobile home owner on a ground other than one contained in s.
723.061. (10) The rules and regulations and the prospectus shall be deemed to be incorporated into the rental agreement. (Emphasis supplied.) Section
723.037, Florida Statutes, sets forth the prescribed procedure for effecting lot rental increases, reduction in services or utilities, changes in rules and regulations, and mediation and arbitration provisions, *155 in event of a dispute....
...nts in occupancy prior to delivery of the prospectus; (2) tenancy in the park is on an annual, rather than a continuous basis, so the park owner can collect fee increases from tenants in occupancy in the park prior to delivery of the prospectus; (3) section 723.037, Florida Statutes, permits the park owner to amend the prospectus to reduce services and begin charging "pass on" charges for utilities upon 90-day notice....
...ate of Chapter 723; (2) tenancy in a mobile home park is continuous from the date a lot rental agreement is entered into or the home owner assumes occupancy, until the homeowner terminates the agreement or is evicted pursuant to section
723.061; (3) section
723.037 is a procedural notice provision which must be read in pari materia with all of Chapter 723, and does not authorize the park owner to amend the prospectus in a manner inconsistent with Chapter 723 upon ninety day notice, for to do so...
...By the same token, the statute recognizes a park owner's need to adjust rental charges and charges for services, and includes a procedure whereby such adjustments can be effected, after proper notice to the affected tenants, and affording the tenants an opportunity to be heard. See §
723.037, Florida Statutes (1987). [4] Third, we conclude that section
723.037 does not permit the park owner to amend the prospectus to reduce services, and to "pass on" charges for utilities in a manner different from that disclosed in the prospectus upon nothing more than a ninety day notice. Rather, section
723.037 is a procedural notice provision which must be read in pari materia with the other provisions of chapter 723. Pursuant to section
723.037, Herrick was authorized to assess a rent increase and increase in charges assessed for utilities once annually, upon ninety day written notice, provided the increase in utility charges was assessed pro rata in accordance with the prospectus and with section
723.031(5), Florida Statutes....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...take effect January 1, 1986. In a letter dated November 20, 1985, the Division formally determined that the August 12th notice was insufficient, but this was too late for Hobe to re-notice the tenants of a rental increase effective January 1, 1986. (Section 723.037(1), Florida Statutes (1985) requires 90 days notice)....
...tatutory duties." Department of Professional Regulation, Board of Medical Examiners v. Durrani,
455 So.2d 515, 517 (Fla. 1st DCA 1984). The third issue that Hobe raises, whether its August 12, 1985 Notice of Rent Increase was sufficient according to §
723.037, Florida Statutes (1985), has been rendered moot by modifications to the statute by the 1986 Legislature....
...We agree with appellant that this requirement was vague, and that guidelines were not provided for its application. Appellant aptly states "how concise is concise?" The 1986 legislature directly addressed this issue when it modified subsection 2 of section 723.037, Florida Statutes (1985) Lot Rental Increases....
...Such rent increase and collection shall be in accordance with the guidelines provided by the legislature in Chapter 86-162, Laws of Florida. AFFIRMED. MILLS and SHIVERS, JJ., concur. NOTES [1] Mobile Homes Ch. 86-162 Laws of Florida effective July 1, 1986. Section 723.037 Lot Rental Increases: (2) Notice as required by this section shall only be required to include the change in the present lot rental amount, the reduction in services or utilities, or the change in rules and regulations and the effective date thereof....
...nge within 30 days of the notice from the park owner to discuss the reasons for the increase in lot rental amount, reduction in services or utilities, or change in rules and regulations. [2] Ch. 86-162 Section 14. The provisions of subsection (2) of section 723.037, Florida Statutes, as created by this act, are intended to be remedial and all previous notices of increase in lot rental amount, reduction in services or utilities, or change in rules and regulations provided in conformance with such section shall be considered proper notice....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2005 Fla. App. LEXIS 1360, 2005 WL 292265
...Even on the issue of allegedly excessive lot rentals, an issue that would appear to affect all mobile homeowners, Amber Glades has not specifically alleged that it continues to have written authorization from a majority of the mobile homeowners to represent them in this proceeding. See § 723.037(1), Fla. Stat. (2003). It has alleged that it has complied with all conditions precedent. In Malco, we did not enforce this statute because the dispute over the mediation agreement was not covered by section 723.037(1); we did not hold that the statute was unconstitutional or otherwise ineffective. Section 723.037(1) requires written authorizations to commence mediation....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1999 WL 194145
...The prospectus, however, provided that if sewer services became available from an outside provider, the Owner reserved the right to do away with the package plant and hook the park up to the provider's network. In 1996, such services became available from North Fort Meyers Utility, Inc. On September 20, 1996, pursuant to section 723.037(1), Florida Statutes (1995), [1] of the Florida Mobile Home Act, the Owner sent notice to the residents and the Association, informing them that as of January 1, 1997, the cost of sewage service would no longer be included in the rent and an outside utility company would provide sewage service....
...er's cost of providing sewage service in past years. Thus, when the Owner sent its notice on September 20, 1996, informing of a January 1, 1997, reduction in services provided by the Owner, it fully complied with the ninety-day notice requirement of section 723.037(1). The Association and the Owner met to discuss the change and entered into mediation, as provided for in section 723.037....
...Similarly, the Owner here was not responsible for the utility company's actions which caused the new sewer service to begin before the end of the ninety-day period. Furthermore, the Owner refunded $6.72 to each resident for the December charges. Based on Hobe and the fact that the purpose of section 723.037 was accomplished, we reverse the trial court's partial final judgment which finds the notice invalid....
...The invalidation of the September notice does not affect the fact that there was a prior negotiated rent increase in August between the parties. Therefore, we dismiss the cross-appeal. Reversed and remanded on main appeal; cross-appeal dismissed. CAMPBELL, A.C.J., and GREEN, J., Concur. NOTES [1] Section 723.037(1), Florida Statutes (1995), provides in pertinent part: (1) A park owner shall give written notice to each affected mobile home owner and the board of directors of the homeowners' Association, if one has been formed, at least 90 days...
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 9366, 1992 WL 213131
...sociation filed an action against the owner requesting a declaratory judgment that the notice mailed to the individual homeowners was invalid because a separate written notice was not given to the board of directors of the association as required by section 723.037(1), Florida Statutes (Supp.1990)....
...of directors or officers of the association. The trial court subsequently granted a final summary judgment in favor of the association, finding that the owner did not provide written notice to the board of directors of the association as required by section
723.037(1) and, therefore, the notice sent to the individual homeowners was not effective. The owner filed this timely appeal. The owner contends that under section
723.037(1) she is required to send the board of directors of the association a separate copy of the notice only when some of the homeowners are affected because in that case individual board members or officers may not otherwise receive a copy of the notice if they are not one of the affected homeowners. Therefore, the owner argues a separate written notice to the board was not required here because all homeowners were affected. We disagree and find that the specific wording of section
723.037(1) requires an owner to send a separate notice to the board of directors, even when all the homeowners are affected and all the members of the board and all officers of the association receive notice in their individual capacities as homeowners. In construing a statute, inference and implication cannot be substituted for clear expression. Carlile v. Game & Fresh Water Fish Comm’n,
354 So.2d 362 (Fla.1977). Section
723.037(1) provides in pertinent part: A park owner shall give written notice to each affected mobile home owner and the board of directors of the homeowners’ association, if one has been formed, at least 90 days prior to any increase in lot rental amount or reduction in services or utilities provided by the park owner or change in rules or regulations. The notice shall identify all other affected homeowners, which may be by lot number, name, group, or phase. *899 When section
723.037 was initially enacted, subsection (1) required a park owner to give written notice to each homeowner at least ninety days prior to any rental increase....
...In 1986, the legislature amended the statute to require the park owner to provide notice only to affected homeowners and the board of directors of the association, if one has been formed. If the homeowners choose to contest the notice of rent increase, section 723.037(4) provides that a committee, designated by a majority of the affected homeowners or by the board of directors of the homeowners association, shall meet with the park owner “within 30 days after receipt by the homeowners of the notice of change” to discuss the reasons for the increase....
...Within thirty days after the meeting described in subsection (4), the homeowners may petition the Division of Florida Land Sales, Condominiums and Mobile Homes of the Department of Business Regulation (Division) to initiate mediation of the dispute. §
723.037(5). See §
723.003(1), Fla.Stat. (Supp.1990). After the 1986 amendment to section
723.037(1), the Division amended rule 7D-32.002, Florida Administrative Code, governing Notice of Lot Rental Increase under section
723.037....
...effective, because the board was never given notice by the owner. The date the notice becomes effective is also relevant to determine the thirty day period within which a committee may meet with the owner to challenge the rental increase pursuant to section 723.037(4), as previously discussed herein....
...he party must act. See Cammarata v. Bechhold,
557 So.2d 922 (Fla. 2d DCA1990); Kereszti v. Bishop,
462 So.2d 508 (Fla. 3d DCA1985). As previously discussed herein, strict compliance is therefore necessary because of the time limitations contained in section
723.037. See Cammarata; Kereszti; Ballett; Nar-di. We decline to disregard the clear legislative direction of section
723.037(1) which provides that the owner “shall” give written notice to the board of directors of the association, as well as the specific requirements imposed by the Division to implement section
723.037(1)....
CopyPublished | Florida 2nd District Court of Appeal | 2006 Fla. App. LEXIS 7081, 2006 WL 1235912
...In its motion for summary judgment, Anerican Land Lease challenged the status of Sun Valley Homeowners as a homeowners’ association established under the requirements of section
723.075. The motion also challenged Sun Valley Homeowners’ compliance with the standing requirement set forth in section
723.037(1)....
...The circuit court ruled that American Land Lease was entitled to summary judg *261 ment on both grounds. In view of our conclusion that the trial court correctly granted the summary judgment- on the basis of Sun Valley Homeowners’ failure to comply with section
723.037(1), we will not address the challenge based on section
723.075. Before discussing the requirement set forth in section
723.037(1) and its application to this case, we will address Sun Valley Homeownets’ 'claim — which we reject — that American Land Lease waived the issue of Sun Valley Homeowners’ compliance with section
723.037(1) by failing to raise the issue in its answer to Sun Valley Homeowners’ complaint....
...Since Sun Valley Homeowners failed in the trial court proceedings to make any showing of prejudice, the trial court properly permitted American Land Lease to raise the capacity to sue issue by way of the motion for summary judgment. The Standing Requirement of Section 723.037(1) Section 723.037 deals with the resolution of disputes concerning “any increase in lot rental amount or reduction in services or utilities provided by the park owner or change in rules and regulations.” § 723.037(1)....
...The statute begins with a requirement that a park owner give advance written notice of such increases in rental amount, reductions in services or utilities, or changes in rules and regulations. The statute outlines a process for conducting meetings for the discussion of disputes. § 723.037(4). The statute also sets forth the process for the initiation of formal mediation. § 723.037(5)....
...The details of the mediation process are set forth in section
723.038. Section
723.0381 authorizes the filing of actions in circuit court when mediation has failed. The question at issue here turns on the interpretation of the concluding sentence of section
723.037(1), which states: “The homeowners’ association shall have no standing to challenge the increase in lot rental amount, reduction, in services or utilities, or change of rules or regulations *264 unless a majority of the affected ho...
...The undisputed facts before the trial court established that a majority of the affected homeowners had not agreed in writing to being represented by Sun Valley Homeowners in the lawsuit against American Land Lease. Accordingly, if the standing requirement of section 723.037(1) applies to lawsuits, the trial court correctly determined as a matter of law that Sun Valley Homeowners did not have standing to bring suit. Section 723.037(1) does two things....
...irements imposed on park owners and the standing requirement for the participation of homeowners’ associations in such disputes. Under the statutory scheme, the filing of a lawsuit constitutes a “challenge” to which the standing requirement of section 723.037(1) applies....
...Initiating a lawsuit is no less of a challenge to, for example, an increase in lot rental amount than is the initiation of mediation. If the legislature had intended for the standing provision to apply only to mediation proceedings, the provision in section
723.037(1) would have specifically referred to mediation and would not have used the broad term challenge. The fact that the initiation of mediation is addressed in section
723.037 while the initiation of litigation is addressed in section
723.0381 does not affect the analysis of the meaning of the standing provision in section
723.037(1)....
...representative capacity by way of the motion for summary judgment. The trial court also correctly determined that the undisputed evidence established that because Sun Valley Homeowners had failed to comply with the applicable standing requirement of section 723.037(1), it lacked the capacity to bring suit in a representa *265 tive capacity....
...Accordingly, the final summary judgment is affirmed. Affirmed. NORTHCUTT and SALCINES, JJ., Concur. . We note that the court in Amber Glades, Inc. v. Leisure Associates Ltd. Partnership,
893 So.2d 620, 625 (Fla. 2d DCA 2005), made the following statement in dicta: "Section
723.037(1) requires written authorizations to commence mediation....
CopyPublished | District Court, M.D. Florida | 2006 U.S. Dist. LEXIS 835, 2006 WL 40897
...Many of Lake Haven's tenants winter here but live elsewhere in the United States and Canada during the remaining seasons. Some leave forwarding addresses with the park's manager, but others do not. On or about September 25, 2002, Defendants' park manager, pursuant to a park owner's obligations under § 723.037 mailed notices about a January 2003 rent increase to 344 lot owners and to the board of directors of the homeowners's association....
...As many as 20 of the 344 affected homeowners did not receive notice of the rent increase. [2] While Board concedes Defendants noticed an overwhelming percentage of Lake Haven's homeowners, it nonetheless argues the Defendants' failed to strictly comply with § 723.037(1) because they did not serve the September 25 notice on every affected homeowner. Consequently, so the Board argues per § 723.037(1), the rent increase as to all homeowners is invalid, even to those tenants who timely received notice....
...ected mobile homeowners and affording them an opportunity to be heard and mediate any resulting dispute. Herrick v. Florida Dept. of Bus. Reg., Div. of Fla. Land Sales,
595 So.2d 148, 156 (Fla. 1st DCA 1992). It is the park owner's obligations under §
723.037(1) and more particularly the consequences for any failure to notice each and every affected homeowner that are at the heart of the dispute....
...addresses available *1235 upon request. . . . The homeowners' association shall have no standing to challenge the increase in lot rental amount . . . unless a majority of the affected homeowners agree, in writing, to such representation. FLA. STAT. § 723.037(1)....
...For this novel and onerous proposition, the Board offers little persuasive support. Clearly, no binding Florida court has construed the provision as the Board proposes. Indeed, after examining the available decisions by Florida courts concerning the construction of § 723.037(1), an administrative agency decision on point, and the remaining parts of the Act, the Board's theory contravenes the stated legislative intent for the Act: "to protect those parties [homeowners and park owners] to the extent that they ar...
...." See §
723.004(1). Accepting the Board's construction would shift this balance unfairly and inequitably in favor of the homeowner. 2. Florida court decisions Neither the Florida Supreme Court or any of Florida's intermediate appellate courts have construed §
723.037(1), at least as it may implicate a park owner's failure to notice each and every homeowner....
...While mere obiter dictum may be entitled to little weight, a carefully considered statement by the state court, even though technically dictum, may be persuasive evidence of how a state court might decide the point. Wright, supra, at § 4507. Although Lake Haven relies on two Florida court decisions for the proposition that §
723.037(1) should be strictly construed, these cases are distinguishable and based on an administrative ruling that the Division subsequently modified. In Menna v. Sun Country Homeowners Assoc., Inc.,
604 So.2d 897 (Fla.2d DCA 1992), a Florida appellate court opined that a park owner failed to comply with §
723.037(1)'s notice requirements when it neglected to serve the board of directors of the homeowners' association with written notice of the rental increase. Specifically, the court found that the park owner did not comply with Florida Admin. Rule 7D-32.002(1), a rule interpreting §
723.037(1)....
...irectors have been given notice. The Division, however, repealed Rule 7D-32.002(1) after Menna. [3] The other case the Board relies upon, Eastman v. Flor-Ohio, Ltd.,
744 So.2d 499 (Fla. 5th DCA 1999), relies on Menna to support of its statement that §
723.037(1)'s notice requirements are to be strictly construed ( Eastman, like Menna, involved a park owner's failure to give notice of a rent increase to the members of the homeowners' association board of directors)....
...st receive notice of a rent increase before that increase can take effect. The Legislature envisioned a democratic and collective action by homeowners for challenging a rent increase with the board or a committee acting as their representatives. See §
723.037(4), (5); §
723.038; §
723.0381....
...Haven's Board. More in keeping with Legislature's stated intent is Mihevic Corp. v. Horizon Village, Inc.,
734 So.2d 1090 (Fla. 2d DCA 1999). In that case a mobile homeowners' association sued the park owner asserting the owner failed to comply with §
723.037(1)'s ninety-day notice requirement....
...The notice informed residents the cost of sewer would no longer be included in their rent; instead, an outside utility company would bill them. Because the utility company billed within the ninety days, the association claimed the park owner had violated § 723.037(1). The court disagreed finding the park owner had satisfied the purpose of § 723.037(1)....
...pplied several months earlier. Subsection one of that rule advanced the position the Board strikes here: a rental increase is not effective for any individual homeowner until it is given to the last of all affected homeowners. The Division contended § 723.037(1)'s terms, a park owner "shall give written notice to each affected homeowner" supported its interpretation....
...rease properly given to the large majority of the homeowners. Adopting these figures, the Defendants properly notified all but 5.7% of the affected homeowners. After considering the existing state law and relevant administrative decision to construe § 723.037(1)'s notice requirements the way the Florida Supreme Court would, I find that the Defendants complied with the notice requirements of Fla. Stat. § 723.037(1)....
...The parties' differences here are frankly immaterial for this analysis. Both essentially agree almost everyone received notice. Nonetheless, for Rule 56 purposes, I accept the Board's score. [3] The new rule the Division enacted after Menna, 61B-32.002, does not attempt to interpret § 723.037(1)'s notice requirements and does not include an equivalent to 7D-32.002(1)....
...use it concerned a rent increase during the operative period of the rule. In citing to Menna the Eastman court stated: "We know from the only case law in existence at the time the class action suit was tried that the notice requirements contained in section
723.037(1), Florida Statutes, were to be strictly construed." Eastman,
744 So.2d at 504....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 1844, 1993 WL 36266
...Appellees claim that the assessment of the impact and construction fees are not “rent”. The lease includes “other governmental costs” as “additional rent”, and while section
723.003(10) includes such charges as “pass through charges”, under section
723.037(1) such pass through charges are treated as increases in the “lot rental amount”....
CopyPublished | Florida 2nd District Court of Appeal | 2003 Fla. App. LEXIS 13020, 2003 WL 22023570
...The dispute was resolved through a mediation proceeding conducted pursuant to section
723.038, Florida Statutes (2000). The homeowners were represented by a five-member committee that was designated by a majority of the homeowners in accordance with section
723.037(4)(a), Florida Statutes (2000)....
...e the remainder of the seller’s rental agreement until its year end on December 31. The Owner also argued that the Association lacked standing to bring the action because the Association did not comply with the statutory prerequisite, set forth in section 723.037(1), Florida Statutes (2001), to obtain consent from a majority of the affected homeowners....
...standing argument and ruled “[t]hat this was a matter of ‘common interest’ and therefore the Plaintiff, under the Florida Rules of Civil Procedure, was entitled to bring this action.” We agree that the Owner’s standing argument founded on section 723.037 has no merit. However, we reverse the trial court’s ruling on standing because we also reject the trial court’s conclusion that the dispute concerned “a matter of common interest” sufficient to confer standing on the Association pursuant to rule 1.222. Section 723.037, Florida Statutes (2001), addresses challenges to lot rental increases and provides in pertinent part in subsection one: “The homeowners’ association shall have no standing to challenge the increase in lot rental amount, reduction...
...n -writing, to such representation.” The dispute below was not a challenge to “the increase in lot rental amount.” The homeowners resolved their challenge to the amount of the rent increases by entering into the mediation agreement. Therefore, section 723.037(1) does not control our resolution of the standing issue....
