escalation clause in Florida

1992In Maison Grande, the court determined that an escalation clause in a condominium lease entered into prior to the effective date of the predecessor of the statute, section 718.4015, was enforceable for the entire term of a ninety-nine year lease, where the lessor has not agreed to be bound by future changes in the condominium act, citing Fleeman v. Case, 342 So.2d 815 (Fla.1976) (retroactive application of predecessor to section 718.4015 would violate the contracts clause of the Florida and federal Constitutions).

1981For the purposes of this section, an escalation clause is any clause in a condominium lease or agreement which provides that the rental under the lease or agreement shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index. *854 The controversy in this case revolves around the appellant's perception that the statute is being applied retroactively in conflict with the Florida Supreme Court's decision in Fleeman v. Case, 342 So.2d 815 (Fla. 1977).

1991The recent case of Association of Golden Glades Condominium Club, Inc. v. Security Management Corp., 557 So.2d 1350 (Fla.1990) clarifies the enforceability of section 718.401(8)(a) and its subsequent changes. 1 It demonstrates that the crucial inquiry in a case where an attempt is being made to void the escalation clause in a recreation lease is whether the lessor agreed to be bound by changes in the Condominium Act, chapter 718.

1990For the reasons we expressed in Association of Golden Glades Condominium Club, Inc. v. Security Management Corp., 557 So.2d 1350 (Fla.1990), which is being released simultaneously with this opinion, we hold that the escalation clause in the instant case is valid and enforceable.

1991See Century Village, Inc. v. Wellington, E, F, K, L, H, J, M & G, Condominium Ass’n, 361 So.2d 128 (Fla.1978); see also Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), cert. denied, 365 So.2d 517 (Fla.1978); Wilderness Country Club Partnership, Ltd. v. Groves, 458 So.2d 769 (Fla. 2d DCA 1984).

1990See Century Village, Inc. v. Wellington, E, F, K, L, H, J, M & G, Condominium Ass’n, 361 So.2d 128 (Fla.1978); see also Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978); Wilderness Country Club Partnership, Ltd. v. Groves, 458 So.2d 769 (Fla. 2d DCA 1984).

1991In Angora Enters., Inc. v. Cole, 439 So.2d 832, 834 (Fla.1983), cert. denied, 466 U.S. 927 , 104 S.Ct. 1710 , 80 L.Ed.2d 183 (1984), the supreme court held that where the declaration of condominium expressly incorporated the Condominium Act and any amendments, such language encompassed the amendment declaring escalation clauses in recreation or land leases void and unenforceable.

1990In Angora Enters., Inc. v. Cole, 439 So.2d 832, 834 (Fla.1983), cert. denied, 466 U.S. 927 , 104 S.Ct. 1710 , 80 L.Ed.2d 183 (1984), the supreme court held that where the declaration of condominium expressly incorporated the Condominium Act and any amendments, such language encompassed the amendment declaring escalation clauses in recreation or land leases void and unenforceable.

1991In Angora Enters., Inc. v. Cole, 439 So.2d 832, 834 (Fla.1983), cert. denied, 466 U.S. 927 , 104 S.Ct. 1710 , 80 L.Ed.2d 183 (1984), the supreme court held that where the declaration of condominium expressly incorporated the Condominium Act and any amendments, such language encompassed the amendment declaring escalation clauses in recreation or land leases void and unenforceable.

1990In Angora Enters., Inc. v. Cole, 439 So.2d 832, 834 (Fla.1983), cert. denied, 466 U.S. 927 , 104 S.Ct. 1710 , 80 L.Ed.2d 183 (1984), the supreme court held that where the declaration of condominium expressly incorporated the Condominium Act and any amendments, such language encompassed the amendment declaring escalation clauses in recreation or land leases void and unenforceable.

1991In Angora Enters., Inc. v. Cole, 439 So.2d 832, 834 (Fla.1983), cert. denied, 466 U.S. 927 , 104 S.Ct. 1710 , 80 L.Ed.2d 183 (1984), the supreme court held that where the declaration of condominium expressly incorporated the Condominium Act and any amendments, such language encompassed the amendment declaring escalation clauses in recreation or land leases void and unenforceable.

1990In Angora Enters., Inc. v. Cole, 439 So.2d 832, 834 (Fla.1983), cert. denied, 466 U.S. 927 , 104 S.Ct. 1710 , 80 L.Ed.2d 183 (1984), the supreme court held that where the declaration of condominium expressly incorporated the Condominium Act and any amendments, such language encompassed the amendment declaring escalation clauses in recreation or land leases void and unenforceable.

2009Id. at 852-53 .

1992Sky Lake Gardens, 574 So.2d at 1137 .

1992We review Maison Grande Condominium Ass'n v. Dorten, Inc., 580 So.2d 859 (Fla. 3d DCA 1991), in which the district court expressly declared section 718.4015, Florida Statutes (Supp. 1988), unconstitutional, [1] and certified the following question of great public importance: Is an escalation clause in a condominium recreation lease that was entered into before 1975 enforceable after October 1, 1988, for the entire term of the ninetynine-year lease, where the lessor has not agreed to be bound by future changes in the condominium act?

1992Maison Grande, 580 So.2d at 862 .

1990We have for review Condominium Association of Plaza Towers North v. Plaza Recreation Development Corp., 514 So.2d 381 (Fla. 3d DCA 1987), in which the Third District Court of Appeal held that an escalation clause in a recreation lease entered into prior to the effective date of section 711.231, Florida Statutes (1975), * was still enforceable.

1987Appellants’ principal authority is Cole v. Angora Enterprises, Inc., 403 So.2d 1010 (Fla. 4th DCA 1981), affirmed, 439 So.2d 832 (Fla.1983).

1984Cf. Singleton v. Foreman, 435 F.2d 962 (5th Cir.1970) (where contingent fee portion of attorney fee contract void, retainer not allowed to stand alone).

1984In Local No. 234 v. Henley & Beckwith, 66 So.2d 818 (Fla. 1953), the supreme court analyzed the circumstances under which the presence of an illegal or unenforceable provision in a contract renders the entire contract invalid: [T]he authorities hold generally that a contract should be treated as entire when, by a consideration of its terms, nature, and purpose, each and all of its parts appear to be interdependent and common to one another and to the consideration.

1983The association, in contending its right to bring an action in 1979, relies upon the decision of our sister court in Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla. 3d DCA), cert. denied, 379 So.2d 203 (Fla. 1979), which was decided solely on the court's analysis of the statute of limitations.

1983See Angora Enterprises, Inc. v. Cole; see also Century Village, Inc. v. Wellington, E, F, K, L, H, J, M & G, Condominium Association, 361 So.2d 128 (Fla.1978); Coral Isle East Condominium v. Snyder, 395 So.2d 1204 (Fla. 3d DCA), rev. denied, 407 So.2d 1105 (Fla.1981); Golden Glades Club Recreation Corp. v. Association of Golden Glades Condominium, Inc., supra. The question presented by this appeal is of great public interest and should be certified to the supreme court. .

1978We are unable to find any cases dealing with the specific provision here involved; however, the Supreme Court of Tennessee in Aztec, supra, determined that a provision for repayment of a loan “in constant United States dollars adjusted for inflation (deflation)” was violative of the Joint Resolution of Congress of June 5, 1933.