Hardwick Properties, Inc. v. Newbern

711 So. 2d 35, 1998 WL 78697
CourtDistrict Court of Appeal of Florida
DecidedFebruary 26, 1998
Docket96-4524
StatusPublished
Cited by34 cases

This text of 711 So. 2d 35 (Hardwick Properties, Inc. v. Newbern) 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
Hardwick Properties, Inc. v. Newbern, 711 So. 2d 35, 1998 WL 78697 (Fla. Ct. App. 1998).

Opinion

711 So.2d 35 (1998)

HARDWICK PROPERTIES, INC., as Managing General Partner of Piper Dunes Company, a Florida general partnership, Appellant,
v.
Kenneth P. NEWBERN and Interstate Motel Developers, Inc., a foreign corporation, Appellees.

No. 96-4524.

District Court of Appeal of Florida, First District.

February 26, 1998.
Rehearing Denied June 12, 1998.

*36 Adam G. Adams, III of Thompson & Adams, Jacksonville, for Appellant.

C. Warren Tripp, Jr. and Robert H. Farnell, II of Bedell, Dittmar, DeVault, Pillans & Coxe, Jacksonville, for Appellees.

VAN NORTWICK, Judge.

Hardwick Properties, Inc., as managing general partner of Piper Dunes Company, a Florida general partnership, the contractor and seller of developed real property known as Piper Dunes Condominiums, appeals a non-final order granting summary judgment in favor of appellees, Kenneth P. Newbern and Interstate Motel Developers, Inc., and holding appellant liable for damages and revocation of two condominium purchase agreements pursuant to the Interstate Land Sales Act, 15 U.S.C. § 1701, et seq. (ILSA or the Act). We conclude that the trial court erred in ruling that as a matter of law the instant contract restrictions on the recovery of special and consequential damages rendered illusory the appellant's contractual obligation to construct the subject buildings within two years of the date of execution of the instant purchase agreements and that, as a result, the appellant was not exempt from compliance with ILSA under the so-called two-year build exemption provided by the Act. See 15 U.S.C. § 1702(a)(2). Accordingly, we reverse and remand for further proceedings.

Factual and Procedural Background

The appellees sought to purchase from appellant two Piper Dunes condominium units. The parties entered into separate, but nearly identical, purchase agreement for the purchase of each unit. Subsequent to appellee paying a deposit on each unit, a dispute arose between the parties regarding certain alleged defects. Neither transaction closed. Appellant brought suit against appellees seeking damages for breach of contract and seeking a declaratory judgment regarding its right to retain the deposits. Appellees, the purchasers, argued below that the purchase agreements were voidable by virtue of appellant's failure to comply with the provisions of the ILSA, 15 U.S.C. section 1701 et seq. Appellant has argued below and argues here *37 that because it was unconditionally obligated to complete construction of the units within two years of the date of the purchase agreements at issue, the purchase agreements are not subject to the requirements of ILSA. Both parties agree that if the respective agreements are not exempt from the requirements of ILSA, then the agreements are unenforceable.

The trial court determined that

[Appellant's] contractual promise to complete construction of the condominium units at issue within two years was conditional and illusory. As a result, the two-year build exemption of [ILSA] is inapplicable to [appellant]. As the "2-year build exemption" ... is not applicable to this action, the disclosure requirements of [ILSA] are applicable to the transactions at issue ... and should have been made by appellant.
* * * * * *
Due to [appellant's] violation of [ILSA], [appellant] is liable to [appellee] for damages, interest, court costs, attorney fees, and other statutory amounts ... and [appellees] are entitled to, should they so elect, revocation of their respective contracts with [appellant].

(Citations omitted).

ILSA Two-Year Construction Requirement

ILSA requires real estate developers to make certain disclosures and fulfill other obligations in connection with the sale of undeveloped or sub-divided land. Under the Act, it is unlawful (except with respect to certain exempt transactions) for any developer to sell through the use of interstate commerce any land offered as a part of a common promotional scheme unless the land is registered with the Secretary of the U.S. Department of Housing and Urban Development (HUD) and the purchaser is provided with written disclosures in advance of signing a purchase agreement. See Guidelines for Exemption Available Under the Interstate Land Sales Full Disclosure Act, 24 CFR Ch. X, § 1700.1, p. 6 (4/1/90); Appalachian, Inc. v. Olson, 468 So.2d 266, 267-268 (Fla. 2d DCA 1985). The Act does not apply, however, among other things,

to ... the sale or lease of any improved land upon which there is a residential, commercial, condominium, or industrial building, or the sale or lease of land under a contract obligating the seller or lessor to erect such building within a period of two years.

15 U.S.C. § 1702(a)(2). Appellant concedes that it did not make the ILSA disclosures or a HUD registration the transactions before us. Appellant asserts, however, that the development was exempt from the requirements of the Act under the two-year building requirement because the instant purchase agreements provided for a contractual obligation to construct the condominium buildings within two years.

The instant purchase agreements purport to establish an "unconditional obligation" on the part of appellant to complete construction of the condominium units within two years by providing in paragraph 7(a), in pertinent part, as follows:

In compliance with § 1710-5(b) of the Interstate Land Sales Full Disclosure Act (15 U.S.C. 1701 et seq.), Developer acknowledges its unconditional obligation to complete and to deliver the Unit to Purchaser within not more than twenty-four (24) months from the date of execution of this Agreement; subject, however, to delays caused by events which would support a defense based upon impossibility of performance for reasons beyond Developer's control, including but not limited to, Acts of God, acts of governmental authority (ies) and courts of law, flood, hurricane, strikes, unavailability of materials, and labor conditions beyond Developer's control. If, because of such delays, the Developer is unable to substantially complete construction of the Unit within twenty-four (24) months from the date of execution of this Agreement, then such time period shall be extended for a term equal to the total period(s) attributable to the delays.

The purchase agreements also restrict the remedies available to the purchaser (appellees here) in the event of breach by the developer (appellant here). The "Default" *38 provision, paragraph 11(b) of the agreements, provides in pertinent part:

If Developer shall breach any of its obligations under this Agreement, Purchaser may elect to terminate this Agreement by giving notice in the manner set forth [herein]...

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Cite This Page — Counsel Stack

Bluebook (online)
711 So. 2d 35, 1998 WL 78697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardwick-properties-inc-v-newbern-fladistctapp-1998.