Suntide Condominium Ass'n, Inc. v. Division of Florida Land Sales and Condominiums, Dept. of Business Regulation, AV-198
| Decision Date | 21 December 1984 |
| Docket Number | No. AV-198,AV-198 |
| Citation | 10 Fla. L. Weekly 19,463 So.2d 314 |
| Parties | 10 Fla. L. Weekly 19 SUNTIDE CONDOMINIUM ASSOCIATION, INC., Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, DEPARTMENT OF BUSINESS REGULATION, Appellee. |
| Court | Florida District Court of Appeals |
F. Shields McManus, McManus, Stewart & Ferraro, P.A., Stuart, for appellant.
Karl M. Scheuerman, Dept. of Business Regulation, Tallahassee, for appellee.
Suntide Condominium Association appeals a final order of the Division of Land Sales and Condominiums requiring Suntide to cease and desist from assessing the condominium's common expenses equally against each unit owner, in violation of section 718.115, Florida Statutes (1983). This is the second time Suntide has been before this court appealing the final cease and desist order from the Division. On the first appeal, we discussed the specific facts of the case and arguments of the parties and, finding an insufficient record, we remanded to the agency for further fact-finding proceedings. Suntide Condominium Assn., Inc. v. Division of Florida Land Sales and Condominiums, 409 So.2d 65 (Fla. 1st DCA 1982). Those proceedings have been conducted, the Division has issued another final cease and desist order, and we now affirm that order.
Briefly stated, the facts are that in late 1974 Suntide Condominium was conceived and planned by the developer, and in early 1975 a proposed declaration of condominium was drafted and executed. At that time, section 711.14, Florida Statutes (1973), provided that common expenses may be assessed "according to the declaration." The proposed declaration of condominium provided that common expenses would be assessed equally against each unit owner. Prior to July 1, 1975, two contracts for the purchase of Suntide Condominium units were executed by potential purchasers, and these contracts contained a clause permitting the developer to cancel the contract unilaterally if he determined not to submit the property to "a condominium plan of ownership." On July 1, 1975, an amendment to section 711.14, Florida Statutes, became effective and provided that common expenses must be assessed against unit owners "in the proportions or percentages of ownership of the common elements provided in the declaration." Subsequent to July 1, the proposed declaration of condominium was formally recorded. § 711.08, Fla.Stat. (1975).
The Division takes the position that Suntide is prohibited by the July 1, 1975, amendment from assessing expenses for the common elements of the condominium equally against each unit owner as originally provided in the proposed declaration of condominium. Suntide argues that application of this statutory amendment to the two contracts executed prior to the effective date of the amendment constitutes an ex post facto law or a law impairing the obligation of a contract, in violation of article I, section X, Florida Constitution. In response to Suntide's argument, the Division contends that the contracts executed prior to the effective date of the amendment were not valid and enforceable contracts until the declaration of condominium was actually recorded as required by section 711.08, Florida Statutes (1975). The Division essentially contends that the clause permitting the developer to cancel the purchase contract if the property is not submitted to condominium development renders the agreement conditional and not mutually enforceable by the parties until the developer has established the legal existence of the condominium by recording the declaration. As such, the Division treats the clause as a condition precedent to enforceability of the contract. Suntide argues that the...
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