Buckley Towers Condominium, Inc. v. Buchwald

356 So. 2d 1306, 1978 Fla. App. LEXIS 15612

• Court: District Court of Appeal of Florida
• Decided: March 28, 1978
• Docket: No. 77-910
• Status: Published

Opinion

PER CURIAM.

The plaintiff Buckley Towers Condominium, Inc., appeals a final order dismissing its action for declaratory decree and other relief before the Circuit Court for the Eleventh Judicial Circuit of Florida. The plaintiff sought to enforce its right of first refusal upon the sale of the defendant Herbert Buchwald’s interest as lessor on a ninety-nine year recreational lease with the plaintiff pursuant to Section 711.63(7)(b), (c), Florida Statutes (1975).¹ The lease itself permits the lessor defendant Herbert Buchwald to freely assign and encumber his interest under the lease; there is no provision in the lease giving the plaintiff the right of first refusal upon a sale of the lessor’s leasehold interest. The defendants Arlene Buchwald and Joseph Walan were joined as party defendants because they allegedly participated with the defendant Herbert Buchwald in the sale of the leasehold interest herein without first giving the plaintiff a right of first refusal on the sale.

Based on well-settled principles of statutory construction and constitutional law, we hold that Section 711.63(7)(b), (c), Florida Statutes (1975) is inapplicable to the lease herein because the said lease was entered into prior to the effective date of the statute and said statute cannot be retroactively applied to alter or vary the terms of such a lease. Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239, 241 (Fla.1977); Avila South Condominium Ass’n. v. Kappa Corp., 347 So.2d 599 (Fla.1976); Fleeman v. Case, 342 So.2d 815 (Fla.1976); Point East One Condominium Corp. v. Point East Developers, Inc., 348 So.2d 32 (Fla.3d DCA 1977); Plaza del Prado Condominium Ass’n. v. Del Prado Management Co., 298 So.2d 544 (Fla.3d DCA 1974). Accordingly, the trial court properly dismissed the plaintiff’s complaint herein.

Affirmed.

1 . “If any portion of the common elements or common areas or any other property serving the unit owners of a condominium or cooperative is subject to a lease and the rent under the lease is payable by the association or by the unit owners, or if a developer leases a unit for a term of more than 5 years or sells a unit subject to a lease with a remaining term of more than 5 years, the terms of the lease shall comply with the following requirements: * * *

[7](b) In the event the lessor wishes to sell his interest and shall have received a bona fide offer to purchase same, such lessor shall notify the association and each unit owner with an executed copy of such offer and the terms thereof. For a period to extend until 90 days following receipt of the offer by the association, the association shall have the option to purchase the interest on the terms and conditions set forth in the offer. Said option shall be exercised, if at all, by notice in writing given to the lessor within said period. If the association does not exercise the option herein granted, the lessor shall have the right, for a period of 60 days after receipt of the notice not to exercise the option, within which to complete the transaction described in the offer to purchase named therein. If for any reason such transaction is not concluded and notice of such fact given to the association within said 60 days, the offer shall be deemed to have been abandoned, and the provisions of this subsection shall be reimposed on the interest in question.

(c) The options shall be exercised upon approval by owners of 75 percent of the units served by the leased property.”