Condominium Ass'n of Plaza Towers North, Inc. v. Plaza Recreation Development Corp.

• Decision Date: 15 September 1987
• Docket Number: No. 86-3097,86-3097
• Citation: 12 Fla. L. Weekly 2238,514 So.2d 381
• Parties: 12 Fla. L. Weekly 2238 CONDOMINIUM ASSOCIATION OF PLAZA TOWERS NORTH, INC., Appellant, v. PLAZA RECREATION DEVELOPMENT CORP., a Florida corporation and Security Management Corp., a Maryland corporation authorized to transact business in the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 381

514 So.2d 381

12 Fla. L. Weekly 2238

CONDOMINIUM ASSOCIATION OF PLAZA TOWERS NORTH, INC., Appellant, v. PLAZA RECREATION DEVELOPMENT CORP., a Florida corporation and Security Management Corp., a Maryland corporation authorized to transact business in the State of Florida, Appellees.

No. 86-3097.

District Court of Appeal of Florida Third District.

Sept. 15, 1987.

Rehearing Denied Nov. 24, 1987.

Becker, Poliakoff & Streitfeld and Mark B. Schorr, Fort Lauderdale, for appellant.

Cypen & Cypen, Miami Beach, Buchbinder & Elegant and Ira Elegant and Carolina A. Echarte, Miami, for appellees.

Before HUBBART, NESBITT and FERGUSON, JJ.

PER CURIAM.

This is an appeal by the defendant condominium association, as a lessee under a long-term condominium recreational lease, from a final judgment which enforces an escalation of rent clause contained in the subject lease. We affirm based on the following briefly stated legal analysis.

First, the subject lease was entered into prior to the effective date of Section 711.231, Florida Statutes (1975) [now § 718.401(8), Fla.Stat. (1985) ] which invalidates rent escalation clauses in condominium recreational leases, and, consequently, the said statute cannot be applied retroactively to invalidate the rent escalation clause contained in the recreational lease presented in the instant case, Fleeman v. Case, 342 So.2d 815 (Fla.1976), ¹ unless the parties herein have by contract agreed to the contrary in the declaration of condominium or the subject long-term lease by binding themselves to any future amendments to the Condominium Act. Angora Enters. v. Cole, 439 So.2d 832 (Fla.1983), cert. denied, 466 U.S. 927, 104 S.Ct. 1710, 80 L.Ed.2d 183 (1984); Century Village, Inc. v. Wellington, E, F, K, L, H, J, M & G Condominium Ass'n, 361 So.2d 128, 132-33 (Fla.1978); Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978).

Second, although the declaration of condominium for the property covered by the subject recreational lease expressly adopted the Condominium Act [ch. 711, Fla.Stat. (1975) ] "as the same may be amended from time to time," it is undisputed that the lessor of the recreational lease herein did not sign the declaration of condominium herein and was not bound thereby. Moreover, the recreational lease, which the parties herein did sign, contains no language incorporating the Condominium Act, as amended. In this connection, we reject the argument that this result was indirectly accomplished by the multiple references in the lease to the declaration of condominum ² which, it is urged, incorporated the declaration of condominium en toto, and therefore incorporated the specific declaration provision which incorporated future amendments to the Condominium Act. There is no specific provision in the lease which expressly adopts the above-stated provision of the declaration of condominium, and in the absence of same, we will not turn the general language of the lease on its head so as to incorporate by incorporation future amendments to the Condominium Act--especially where, as here, the result of such an interpretation is to void specific rental provisions in the lease. We think such a drastic result should only be accomplished by clearly expressed lease terms which expressly adopt the Condominium Act, as amended. This being so, it is plain that the parties by contract did not agree to be bound by future amendments to the Condominium Act, including Section 711.231, Florida Statutes (1975). Cove Club Investors Ltd. v. Sandalfoot South One, Inc., 438 So.2d 354 (Fla.1983).

Third, we do not agree that a 1973 stipulation which settled a lawsuit involving the present parties, among others, changes this result. The parties agreed in the stipulation that the lessee herein would "not be deprived" of any benefits or rights conferred by future legislation. Plainly, Section 711.231, Florida Statutes (1975), which was enacted subsequent to the stipulation, confers no legislative benefits or rights to the lessee herein because it has no retroactive application to the subject lease. Fleeman v. Case.

Finally, it follows that the rent escalation clause contained in the subject lease is valid and was properly enforced below by the trial court. The final judgment under review is, therefore, in all respects

Affirmed.

HUBBART and NESBITT, JJ., concur.

FERGUSON, Judge (dissenting).

I respectfully disagree with the majority's analysis. On the first point I believe that the scheduled date of escalation rather than the date of the lease is the operative date for applying the test for retroactivity. Fleeman v. Case, 342 So.2d 815 (Fla.1976), relied upon by the majority, did not decide the issue. See Angora Enterprises v. Cole, 439 So.2d 832, 835 (Fla.1983), cert. denied, 466 U.S. 927, 104 S.Ct. 1710, 80 L.Ed.2d 183 (1984), and Association of Golden Glades, Condo. Club, Inc. v. Golden Glades Club Recreation Corp., 441 So.2d 154, 155 (Fla. 3d DCA 1983) (Ferguson, J., dissenting), rev. denied, 455 So.2d 1033 (Fla.1984).

In Penthouse North Assoc. v. Lombardi, 461 So.2d 1350 (Fla.1984), the supreme court, in citing De Vore v. Lee, 158 Fla. 608, 30 So.2d 924 (1947) (an obligation to pay rent is a contingent one which becomes an enforceable debt only as the rent is earned), appears to have approved the view that the statutory prohibition against rent escalations may be raised when the lessor attempts to enforce a new...