right to acquire; escalation clauses
right to acquire; escalation clauses
(1) Any lease of recreational or other commonly used facilities serving a community, which lease is entered into by the association or its members before control of the homeowners’ association is turned over to the members other than the developer, must provide as follows:
(a) That the facilities may not be offered for sale unless the homeowners’ association has the option to purchase the facilities, provided the homeowners’ association meets the price and terms and conditions of the facility owner by executing a contract with the facility owner within 90 days, unless agreed to otherwise, from the date of mailing of the notice by the facility owner to the homeowners’ association. If the facility owner offers the facilities for sale, he or she shall notify the homeowners’ association in writing stating the price and the terms and conditions of sale.
(b) If a contract between the facility owner and the association is not executed within such 90-day period, unless extended by mutual agreement, then, unless the facility owner thereafter elects to offer the facilities at a price lower than the price specified in his or her notice to the homeowners’ association, he or she has no further obligations under this subsection, and his or her only obligation shall be as set forth in subsection (2).
(c) If the facility owner thereafter elects to offer the facilities at a price lower than the price specified in his or her notice to the homeowners’ association, the homeowners’ association will have an additional 10 days to meet the price and terms and condition of the facility owner by executing a contract.
(2) If a facility owner receives a bona fide offer to purchase the facilities that he or she intends to consider or make a counteroffer to, his or her only obligations shall be to notify the homeowners’ association that he or she has received an offer, to disclose the price and material terms and conditions upon which he or she would consider selling the facilities, and to consider any offer made by the homeowners’ association. The facility owner shall be under no obligation to sell to the homeowners’ association or to interrupt or delay other negotiations, and he or she shall be free at any time to execute a contract for the sale of the facilities to a party or parties other than the homeowners’ association.
(3)(a) As used in subsections (1) and (2), the term “notify” means the placing of a notice in the United States mail addressed to the president of the homeowners’ association. Each such notice shall be deemed to have been given upon the deposit of the notice in the United States mail.
(b) As used in subsection (1), the term “offer” means any solicitation by the facility owner directed to the general public.
(4) This section does not apply to:
(a) Any sale or transfer to a person who would be included within the table of descent and distribution if the facility owner were to die intestate.
(b) Any transfer by gift, devise, or operation of law.
(c) Any transfer by a corporation to an affiliate. As used herein, the term “affiliate” means any shareholder of the transferring corporation; any corporation or entity owned or controlled, directly or indirectly, by the transferring corporation; or any other corporation or entity owned or controlled, directly or indirectly, by any shareholder of the transferring corporation.
(d) Any transfer to a governmental or quasi-governmental entity.
(e) Any conveyance of an interest in the facilities incidental to the financing of such facilities.
(f) Any conveyance resulting from the foreclosure of a mortgage, deed of trust, or other instrument encumbering the facilities or any deed given in lieu of such foreclosure.
(g) Any sale or transfer between or among joint tenants in common owning the facilities.
(h) The purchase of the facilities by a governmental entity under its powers of eminent domain.
(5)(a) The Legislature declares that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in land leases or other leases for recreational facilities, land, or other commonly used facilities that serve residential communities, and such clauses are hereby declared void. For purposes of this section, an escalation clause is any clause in a lease which provides that the rental rate under the lease or agreement is to increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index.
(b) This public policy prohibits the inclusion of such escalation clauses in leases entered into after the effective date of this amendment.
(c) This section is inapplicable:
1. If the lessor is the Federal Government, this state, any political subdivision of this state, or any agency of a political subdivision of this state; or
2. To a homeowners’ association that is in existence on the effective date of this act, or to an association, no matter when created, if the association is created in a community that is included in an effective development-of-regional-impact development order as of the effective date of this act, together with any approved modifications thereto.
(6) An association may enter into agreements to acquire leaseholds, memberships, and other possessory or use interests in lands or facilities, including, but not limited to, country clubs, golf courses, marinas, submerged land, parking areas, conservation areas, and other recreational facilities. An association may enter into such agreements regardless of whether the lands or facilities are contiguous to the lands of the community or whether such lands or facilities are intended to provide enjoyment, recreation, or other use or benefit to the owners. All leaseholds, memberships, and other possessory or use interests existing or created at the time of recording the declaration must be stated and fully described in the declaration. Subsequent to recording the declaration, agreements acquiring leaseholds, memberships, or other possessory or use interests not entered into within 12 months after recording the declaration may be entered into only if authorized by the declaration as a material alteration or substantial addition to the common areas or association property. If the declaration is silent, any such transaction requires the approval of 75 percent of the total voting interests of the association. The declaration may provide that the rental, membership fees, operations, replacements, or other expenses are common expenses; impose covenants and restrictions concerning their use; and contain other provisions not inconsistent with this subsection. An association exercising its rights under this subsection may join with other associations that are part of the same development or with a master association responsible for the enforcement of shared covenants, conditions, and restrictions in carrying out the intent of this subsection. This subsection is intended to clarify law in existence before July 1, 2010.
History.—s. 60, ch. 95-274; s. 107, ch. 97-102; s. 51, ch. 2000-258; s. 27, ch. 2010-174.
Note.—Former s. 617.31.