Florida Statute 718.401 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XL
REAL AND PERSONAL PROPERTY

Chapter 718
CONDOMINIUMS

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F.S. 718.401

718.401 Leaseholds.—

(1) A condominium may be created on lands held under lease or may include recreational facilities or other common elements or commonly used facilities on a leasehold if, on the date the first unit is conveyed by the developer to a bona fide purchaser, the lease has an unexpired term of at least 50 years. However, if the condominium constitutes a nonresidential condominium or commercial condominium, or a timeshare condominium created pursuant to chapter 721, the lease shall have an unexpired term of at least 30 years. If rent under the lease is payable by the association or by the unit owners, the lease shall include the following requirements:

(a) The leased land must be identified by a description that is sufficient to pass title, and the leased personal property must be identified by a general description of the items of personal property and the approximate number of each item of personal property that the developer is committing to furnish for each room or other facility. In the alternative, the personal property may be identified by a representation as to the minimum amount of expenditure that will be made to purchase the personal property for the facility. Unless the lease is of a unit, the identification of the land shall be supplemented by a survey showing the relation of the leased land to the land included in the common elements. This provision shall not prohibit adding additional land or personal property in accordance with the terms of the lease, provided there is no increase in rent or material increase in maintenance costs to the individual unit owner.

(b) The lease shall not contain a reservation of the right of possession or control of the leased property by the lessor or any person other than unit owners or the association and shall not create rights to possession or use of the leased property in any parties other than the association or unit owners of the condominium to be served by the leased property, unless the reservations and rights created are conspicuously disclosed. Any provision for use of the leased property by anyone other than unit owners of the condominium to be served by the leased property shall require the other users to pay a fair and reasonable share of the maintenance and repair obligations and other exactions due from users of the leased property.

(c) The lease shall state the minimum number of unit owners that will be required, directly or indirectly, to pay the rent under the lease and the maximum number of units that will be served by the leased property. The limitation of the number of units to be served shall not preclude enlargement of the facilities leased and an increase in their capacity, if approved by the association operating the leased property after unit owners other than the developer have assumed control of the association. The provisions of this paragraph do not apply if the lessor is the Government of the United States or this state or any political subdivision thereof or any agency of any political subdivision thereof.

(d)1. In any action by the lessor to enforce a lien for rent payable or in any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner or the association may raise any issue or interpose any defense, legal or equitable, that he or she or it may have with respect to the lessor’s obligations under the lease. If the unit owner or the association initiates any action or interposes any defense other than payment of rent under the lease, the unit owner or the association shall, upon service of process upon the lessor, pay into the registry of the court any allegedly accrued rent and the rent which accrues during the pendency of the proceeding, when due. If the unit owner or the association fails to pay the rent into the registry of the court, the failure constitutes an absolute waiver of the unit owner’s or association’s defenses other than payment, and the lessor is entitled to default. The unit owner or the association shall notify the lessor of any deposits. When the unit owner or the association has deposited the required funds into the registry of the court, the lessor may apply to the court for disbursement of all or part of the funds shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities or necessary for the payment of other expenses arising out of personal hardship resulting from the loss of rental income from the leased facilities. The court, after an evidentiary hearing, may award all or part of the funds on deposit to the lessor for such purpose. The court shall require the lessor to post bond or other security, as a condition to the release of funds from the registry, when the value of the leased land and improvements, apart from the lease itself, is inadequate to fully secure the sum of existing encumbrances on the leased property and the amounts released from the court registry.

2. When the association or unit owners have deposited funds into the registry of the court pursuant to this subsection and the unit owners and association have otherwise complied with their obligations under the lease or agreement, other than paying rent into the registry of the court rather than to the lessor, the lessor cannot hold the association or unit owners in default on their rental payments nor may the lessor file liens or initiate foreclosure proceedings against unit owners. If the lessor, in violation of this subsection, attempts such liens or foreclosures, then the lessor may be liable for damages plus attorney’s fees and costs that the association or unit owners incurred in satisfying those liens or foreclosures.

3. Nothing in this paragraph affects litigation commenced prior to October 1, 1979.

(e) If the lease is of recreational facilities or other commonly used facilities that are not completed, rent shall not commence until some of the facilities are completed. Until all of the facilities leased are completed, rent shall be prorated and paid only for the completed facilities in the proportion that the value of the completed facilities bears to the estimated value, when completed, of all of the facilities that are leased. The facilities shall be complete when they have been constructed, finished, and equipped and are available for use.

(f)1. A lease of recreational or other commonly used facilities entered into by the association or unit owners prior to the time when the control of the association is turned over to unit owners other than the developer shall grant to the lessee an option to purchase the leased property, payable in cash, on any anniversary date of the beginning of the lease term after the 10th anniversary, at a price then determined by agreement. If there is no agreement as to the price, then the price shall be determined by arbitration conducted pursuant to chapter 44 or chapter 682. This paragraph shall be applied to contracts entered into on, before, or after January 1, 1977, regardless of the duration of the lease.

2. If the lessor wishes to sell his or her interest and has received a bona fide offer to purchase it, the lessor shall send the association and each unit owner a copy of the executed offer. For 90 days following receipt of the offer by the association or unit owners, the association or unit owners have the option to purchase the interest on the terms and conditions in the offer. The option shall be exercised, if at all, by notice in writing given to the lessor within the 90-day period. If the association or unit owners do not exercise the option, the lessor shall have the right, for a period of 60 days after the 90-day period has expired, to complete the transaction described in the offer to purchase. If for any reason such transaction is not concluded within the 60 days, the offer shall have been abandoned, and the provisions of this subsection shall be reimposed.

3. The option shall be exercised upon approval by owners of two-thirds of the units served by the leased property.

4. The provisions of this paragraph do not apply to a nonresidential condominium and do not apply if the lessor is the Government of the United States or this state or any political subdivision thereof or, in the case of an underlying land lease, a person or entity which is not the developer or directly or indirectly owned or controlled by the developer and did not obtain, directly or indirectly, ownership of the leased property from the developer.

(g) The lease or a subordination agreement executed by the lessor must provide either:

1. That any lien which encumbers a unit for rent or other moneys or exactions payable is subordinate to any mortgage held by an institutional lender, or

2. That, upon the foreclosure of any mortgage held by an institutional lender or upon delivery of a deed in lieu of foreclosure, the lien for the unit owner’s share of the rent or other exactions shall not be extinguished but shall be foreclosed and unenforceable against the mortgagee with respect to that unit’s share of the rent and other exactions which mature or become due and payable on or before the date of the final judgment of foreclosure, in the event of foreclosure, or on or before the date of delivery of the deed in lieu of foreclosure. The lien may, however, automatically and by operation of the lease or other instrument, reattach to the unit and secure the payment of the unit’s proportionate share of the rent or other exactions coming due subsequent to the date of final decree of foreclosure or the date of delivery of the deed in lieu of foreclosure.

The provisions of this paragraph do not apply if the lessor is the Government of the United States or this state or any political subdivision thereof or any agency of any political subdivision thereof.

(2) Subsection (1) does not apply to residential cooperatives created prior to January 1, 1977, which are converted to condominium ownership by the cooperative unit owners or their association after control of the association has been transferred to the unit owners if, following the conversion, the unit owners will be the same persons who were unit owners of the cooperative and no units are offered for sale or lease to the public as part of the plan of conversion.

(3) If rent under the lease is a fixed amount for the full duration of the lease, and the rent thereunder is payable by a person or persons other than the association or the unit owners, the division director has the discretion to accept alternative assurances which are sufficient to secure the payment of rent, including, but not limited to, annuities with an insurance company authorized to do business in this state, the beneficiary of which shall be the association, or cash deposits in trust, the beneficiary of which shall be the association, which deposit shall be in an amount sufficient to generate interest sufficient to meet lease payments as they occur. If alternative assurances are accepted by the division director, the following provisions are applicable:

(a) Disclosures contemplated by paragraph (1)(b), if not contained within the lease, may be made by the developer.

(b) Disclosures as to the minimum number of unit owners that will be required, directly or indirectly, to pay the rent under the lease and the maximum number of units that will be served by the leased property, if not contained in the lease, may be stated by the developer.

(d) The provisions of paragraph (1)(g) do not apply.

History.—s. 1, ch. 76-222; s. 1, ch. 77-174; ss. 6, 13, ch. 78-340; s. 1, ch. 79-166; s. 13, ch. 79-314; ss. 4, 7, ch. 80-323; s. 5, ch. 81-185; s. 13, ch. 84-368; s. 46, ch. 85-62; s. 6, ch. 88-148; s. 1, ch. 88-225; s. 17, ch. 90-151; s. 15, ch. 91-103; s. 1, ch. 91-236; s. 5, ch. 91-426; s. 865, ch. 97-102.

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Amendments to 718.401

Arrestable Offenses / Crimes under Fla. Stat. 718.401

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 718.401.

Annotations, Discussions, Cases:

Cases Citing Statute 718.401

Total Results: 20

BEACH CLUB TOWERS HOMEOWNERS ASSOCIATION, INC. v. CHRIS JONES, Property Appraiser for Escambia County, Florida JANET HOLLEY, Tax Collector for Escambia County, Florida

Court: Fla. Dist. Ct. App. | Date Filed: 2017-10-30T00:53:00-07:00

Snippet: under a lease complying with the provisions of s. 718.401.”). Here, the declaration of condominium

Fiore v. Hilliker

Court: Fla. Dist. Ct. App. | Date Filed: 2015-07-15T00:00:00-07:00

Citation: 170 So. 3d 147, 2015 Fla. App. LEXIS 10744, 2015 WL 4249732

Snippet: pursuant to the Condominium Act of Florida, section 718.401(8)(a), Florida Statutes (1983). Additionally, when

Fiore v. Hilliker

Court: Fla. Dist. Ct. App. | Date Filed: 2015-03-13T00:00:00-07:00

Citation: 159 So. 3d 377, 2015 Fla. App. LEXIS 3615, 2015 WL 1088449

Snippet: pursuant to the Condominium Act of Florida, section 718.401(8)(a), Florida Statutes (1983). Additionally, when

Sinatra v. Bussel

Court: Fla. Dist. Ct. App. | Date Filed: 2013-07-10T00:00:00-07:00

Citation: 119 So. 3d 473, 2013 WL 3449751, 2013 Fla. App. LEXIS 10940

Snippet: limited common element. They note that section 718.401(1), Florida Statutes (2005), provides that for

Jupiter Ocean & Racquet Club Condominium Ass'n v. Courtside Properties of Palm Beach, LLC

Court: Fla. Dist. Ct. App. | Date Filed: 2009-09-02T00:00:00-07:00

Citation: 17 So. 3d 854, 2009 Fla. App. LEXIS 12818, 2009 WL 2762686

Snippet: Hovnanian, the court examined whether section 718.401, Florida Statutes, invalidated an escalation clause

Schulberg v. Schulberg

Court: Fla. Dist. Ct. App. | Date Filed: 2004-09-22T00:53:00-07:00

Citation: 883 So. 2d 352

Snippet: Florida Statutes, with id. § 682.02; see also id. § 718.401(1)(f). If so, the statute should be clarified to

FLORIDA DISCOUNT PROP., INC. v. Windermere Condo., Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 2001-06-20T00:53:00-07:00

Citation: 786 So. 2d 1271

Snippet: upon two alternative theories: first, section 718.401(1)(f), Florida Statutes (1997),[3] and second, …not find it necessary to address whether section 718.401(1)(f)'s right of first refusal, the other basis…presumptively unconscionable." [3] Section 718.401(1)(f) provides in pertinent part: (f)1. A lease

Florida Discount Properties, Inc. v. Windermere Condominium, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 2000-04-12T00:00:00-07:00

Citation: 763 So. 2d 1085, 2000 Fla. App. LEXIS 4276, 2000 WL 369126

Snippet: made into the court registry pursuant to section 718.401(l)(d)l, Florida Statutes (1997). Florida Discount…Procedure 9.130(3)(c)(ii). We reverse. Section 718.401(l)(d)l provides in part: In any action by the lessor

Florida Discount Prop. Inc. v. Windermere Condo. Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 1999-10-27T00:53:00-07:00

Citation: 763 So. 2d 1084

Snippet: the registry of the court pursuant to section 718.401(1)(d), Florida Statutes (1997), which the trial

Doral Mobile Home Villas, Inc. v. Doral Home Owners, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 1994-12-28T00:00:00-08:00

Citation: 661 So. 2d 24, 1994 Fla. App. LEXIS 12564

Snippet: the unit owners. Ch. 79-166, Laws of Fla. See § 718.401(l)(d)l., Fla. Stat. (1993). When the Florida Mobile

MLH Property Managers, Inc. v. Cox

Court: Fla. Dist. Ct. App. | Date Filed: 1993-02-17T00:00:00-08:00

Citation: 613 So. 2d 1358, 1993 Fla. App. LEXIS 1844, 1993 WL 36266

Snippet: construction of a similar statutory provision in section 718.-401(4)(a), Florida Statutes, requiring deposit of …v. Basse, 375 So.2d 290 (Fla. 2d DCA 1979): [§ 718.401(4)(1) ] contemplates the establishment of a secured

Regency Villas Condominium Ass'n v. Keltner

Court: Fla. Dist. Ct. App. | Date Filed: 1992-12-16T00:00:00-08:00

Citation: 610 So. 2d 661, 1992 Fla. App. LEXIS 12828, 1992 WL 371362

Snippet: that the increases were prohibited by section 718.401, Florida Statutes (1987), subsequently renumbered

MAISON GRANDE CONDO. ASS'N, INC. v. Dorten, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 1991-05-28T00:53:00-07:00

Citation: 580 So. 2d 859

Snippet: chapter 711 was replaced by chapter 718; section 718.401(8)(a) recodified the prior declaration that escalation…'s public policy. On July 1, 1988, section 718.401(8) was replaced by the virtually identical section

Sky Lake Gardens Recreation, Inc. v. Sky Lake Gardens Nos. 1, 3, & 4, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 1991-01-29T00:00:00-08:00

Citation: 574 So. 2d 1135, 1991 Fla. App. LEXIS 643, 1991 WL 9551

Snippet: the 1984 escalation, was based solely on section 718.401(8)(a), Florida Statutes (1983), now section 718

Sky Lake Gardens Recreation, Inc. v. Sky Lake Gardens Nos. 1, 3, & 4, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 1990-10-09T00:00:00-07:00

Citation: 567 So. 2d 1026, 1990 Fla. App. LEXIS 7690, 1990 WL 149818

Snippet: the 1984 escalation, was based solely on section 718.401(8)(a), Florida Statutes (1983), now section 718

Beeman v. Island Breakers

Court: Fla. Dist. Ct. App. | Date Filed: 1990-06-26T00:53:00-07:00

Citation: 577 So. 2d 1341

Snippet: section 718.4015 were transferred from subsection 718.401(8), Florida Statutes (1987), which had for some…with amendments) what was previously subsection 718.401(8), Florida Statutes (1987), to a newly created…Statutes (Supp. 1988). The predecessor to subsection 718.401(8) was section 711.231, Florida Statutes (1975)… It was transferred in amended form to section 718.401(8), Florida Statutes (Supp. 1976) by chapter 76

Ass'n of Golden Glades Condo. Club, Inc. v. SECURITY MGMT. CORP.

Court: Fla. | Date Filed: 1990-02-28T23:53:00-08:00

Citation: 557 So. 2d 1350

Snippet: was subsequently renumbered as section 718.401. Section 718.401, Florida Statutes (1985), provided, in…public importance: TO WHAT EXTENT DOES SECTION 718.401(8), FLORIDA STATUTES (1985), APPLY TO RENT ESCALATION…1988), which included the provisions of section 718.401. Further, the legislature amended section 718.4015…those two decisions, it held that "section 718.401(8), Florida Statutes (1985), previously section…modify what was previously set forth in section 718.401(8). Section 718.4015, Florida Statutes (1988),

Cenvill Investors, Inc. v. Condominium Owners Organization of Century Village East, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 1990-02-14T00:00:00-08:00

Citation: 556 So. 2d 1197, 1990 Fla. App. LEXIS 878, 1990 WL 11125

Snippet: the registry of the court pursuant to section 718.401(4)(a), Florida Statutes (1987). COOCVE is an umbrella…for purposes of obtaining relief under section 718.-401(4)(a), Florida Statutes (1987). No. 88

Garden Isles Apartments No. 3, Inc. v. Connolly

Court: Fla. Dist. Ct. App. | Date Filed: 1989-06-28T00:00:00-07:00

Citation: 546 So. 2d 38, 14 Fla. L. Weekly 1538, 1989 Fla. App. LEXIS 3650, 1989 WL 69073

Snippet: five years. Appellants’ contention that section 718.401(8), Florida Statutes (1985) renders the subject…became effective October 1, 1988, repealed section 718.401(8) and replaced it with section 718.-4015. Section

Sun Bank/Miami, N.A. v. Pathway Financial

Court: Fla. Dist. Ct. App. | Date Filed: 1989-04-04T00:00:00-07:00

Citation: 540 So. 2d 926, 1989 Fla. App. LEXIS 1665, 1989 WL 30799

Snippet: Sections 679.104(10), 718.104(1), 718.107, and 718.401, Florida Statutes (1987). No. 88-941