Foster v. Jones

349 So. 2d 795
CourtDistrict Court of Appeal of Florida
DecidedSeptember 7, 1977
Docket76-1566
StatusPublished
Cited by7 cases

This text of 349 So. 2d 795 (Foster v. Jones) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Jones, 349 So. 2d 795 (Fla. Ct. App. 1977).

Opinion

349 So.2d 795 (1977)

M.H. FOSTER and A.N. Britt, Trustees, Appellants,
v.
Clarence JONES and Mary Ellen Jones, His Wife, Appellees.

No. 76-1566.

District Court of Appeal of Florida, Second District.

September 7, 1977.

*796 John R. Newcomer, Jr., of Yado, Keel, Nelson, Casper, Bergmann & Newcomer, Tampa, for appellants.

David L. Anderson, New Port Richey, for appellees.

HOBSON, Acting Chief Judge.

In this test case we are called upon to decide the validity of a "land covenant fee" and whether such a payment is supported by adequate consideration.[1] The trial court found no such consideration. We reverse and remand for further proceedings.

On December 12, 1969, William J. Morrison, as Trustee for the owner, Sadie Foster Trust, leased a tract of land to Florida Leisure Homes, Inc., which lease was duly recorded. Florida Leisure, acting as developer, was to construct and develop four condominium projects to be known as Imperial Embassy Condominiums I, II, III and IV. This lawsuit concerns only phase III of that condominium development. It should also be noted that whether or not this long-term lease (99 years) covered the land on which phase III is located was the central dispute below.

On September 5, 1970, Morrison assigned the lease to the present appellants, Foster and Britt, also trustees for the owner, Sadie Foster Trust. Shortly thereafter Foster and Britt, in conjunction with Florida Leisure, cancelled the long-term lease on condominiums phases I and II. Despite the dispute between the instant parties as to whether or not the lease given to Leisure Homes in 1969 ever covered the property on which Imperial Embassy III was built, there is evidence in the record that the lease was also cancelled with respect to this third phase.[2] Following the purported cancellation of the long-term lease, on or about August 16, 1971, the Declaration of Condominium of Imperial Embassy III was signed. It was recorded thereafter. The declaration provided that in consideration for cancellation of the long-term lease, creation of the condominium and conveyance of the condominium parcels the association would assume all of the obligations running to Florida Leisure Homes under the long-term lease and that every unit owner would be responsible for a pro-rata share of the cancelled lease fee, which became known as the "land covenant fee."[3]

*797 On March 20, 1972, the appellees contracted with Florida Leisure Homes to buy Unit 24-A of condominium III. Appellants did not participate in the sales negotiations nor did they sign the contract of purchase. However, as trustees for the owner, Sadie Foster Trust, appellants did convey a warranty deed to the appellees on April 12, 1972. The deed was allegedly delivered some months later. Both the contract of purchase and the warranty deed contain specific limitations subjecting the condominium unit to all provisions in the Declaration of Condominium. Despite these references in the documents of sale, appellees maintain they were not aware of the Declaration of Condominium, a land covenant fee or any aspect of a long-term lease. They admit that they were aware that included in the purchase arrangement was a requirement to pay a monthly maintenance fee for utilities, recreational facilities, and maintenance.

In 1974 the appellees first became aware that they were making a payment for a land covenant fee that was not being retained by the association for common expenses. Upon realizing that only one-half of his $45 maintenance fee was being applied to the condominium maintenance expenses, appellee Clarence Jones refused to continue paying that portion of the monthly maintenance bill allocable to the land covenant fee. Other members of the association, also having discovered the land covenant fee, refused to pay it.

On May 6, 1975, appellants filed a claim of lien on the property owned by the appellees for failure to pay the land covenant fee as per the Declaration of Condominium. In response the appellees filed a complaint to show cause why the lien should not be vacated. Appellants answered this complaint and counterclaimed to foreclose the lien. Following the filing of appellants' second amended counterclaim to foreclose the lien, the appellees filed an answer and some eighteen affirmative defenses including, inter alia, lack of consideration, illegal restraint on alienation, full payment for the condominium parcel, the fee was a mortgage without compliance with formal requisites and unconscionability.

Subsequently, on June 21, 1976, the cause went to trial and the trial judge ruled that the land covenant fee contained in the Declaration of Condominium was not supported by sufficient consideration and thus was null and void. His ruling was specifically based upon a finding of fact that the lease between Morrison and Florida Leisure Homes in 1969 covered only the erection of Imperial Embassy Condominiums I and II.

The narrow issue presented by this case is whether sufficient consideration exists for payment of the land covenant fee. Implicit in the answer to this question is the effect, if any, of the execution and subsequent cancellation of the long-term lease by appellants and Florida Leisure Homes with the lease obligation being incorporated in the Declaration of Condominium. Appellees assert, and the trial court found, that the lease executed by the appellants' predecessor never covered the property designated for construction of Imperial Embassy III. Thus, they posit that since any cancellation of a non-existent lease was a nudum pactum, then any consideration recited in the declaration as accruing because of the cancellation of the lease was similarly illusory, void and without effect. In the alternative the appellees contend that if the lease ever did cover phase III its cancellation, prior to the recording of the Declaration of Condominium, yields the same result, to wit, the consideration is illusory.

Our analysis of this unusual "land covenant fee" suggests that cancellation of the lease to Florida Leisure Homes is only one factor of "consideration" recited in the Declaration of Condominium. The disputed portion of the Declaration of Condominium pertaining to the land covenant fee as consideration provides in pertinent part,

M. ADDITIONAL PROVISIONS, COVENANTS, RESTRICTIONS, CONDITIONS AND LIMITATIONS:
(1) Reservation of Land Payment.
The improvements constructed, placed and installed on the land, described in Paragraph C hereof, were placed, installed *798 or constructed (as the case may be) by Florida Leisure Homes, Inc., a Florida corporation, a party to this Declaration, pursuant to a right-to-build covenant contained in a Long Term Lease with A.N. Britt and M.H. Foster, Trustees, Fee Owners of the land referred to herein as Fee Owner. In order to submit the condominium property, consisting of land and improvements, to condominium ownership and to convey condominium parcels therefrom, the undersigned, Florida Leisure Homes, Inc., requested the above Fee Owner to cancel the Long Term Lease, join in this Declaration, and when requested by Florida Leisure Homes, Inc. to execute Warranty Deeds conveying the condominium parcels to the designees or assigns of Florida Leisure Homes, Inc.

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Bluebook (online)
349 So. 2d 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-jones-fladistctapp-1977.