The 2023 Florida Statutes (including Special Session C)

Title XL
REAL AND PERSONAL PROPERTY

Chapter 718
CONDOMINIUMS

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F.S. 718.122

718.122 Unconscionability of certain leases; rebuttable presumption.—

(1) A lease pertaining to use by condominium unit owners of recreational or other common facilities, irrespective of the date on which such lease was entered into, is presumptively unconscionable if all of the following elements exist:

(a) The lease was executed by persons none of whom at the time of the execution of the lease were elected by condominium unit owners, other than the developer, to represent their interests;

(b) The lease requires either the condominium association or the condominium unit owners to pay real estate taxes on the subject real property;

(c) The lease requires either the condominium association or the condominium unit owners to insure buildings or other facilities on the subject real property against fire or any other hazard;

(d) The lease requires either the condominium association or the condominium unit owners to perform some or all maintenance obligations pertaining to the subject real property or facilities located upon the subject real property;

(e) The lease requires either the condominium association or the condominium unit owners to pay rents to the lessor for a period of 21 years or more;

(f) The lease provides that failure of the lessee to make payments of rents due under the lease either creates, establishes, or permits establishment of a lien upon individual condominium units of the condominium to secure claims for rent;

(g) The lease requires an annual rental which exceeds 25 percent of the appraised value of the leased property as improved, provided that, for purposes of this paragraph, “annual rental” means the amount due during the first 12 months of the lease for all units, regardless of whether such units were in fact occupied or sold during that period, and “appraised value” means the appraised value placed upon the leased property the first tax year after the sale of a unit in the condominium;

(h) The lease provides for a periodic rental increase; and

(i) The lease or other condominium documents require that every transferee of a condominium unit must assume obligations under the lease.

(2) The Legislature expressly finds that many leases involving use of recreational or other common facilities by residents of condominiums were entered into by parties wholly representative of the interests of a condominium developer at a time when the condominium unit owners not only did not control the administration of their condominium, but also had little or no voice in such administration. Such leases often contain numerous obligations on the part of either or both a condominium association and condominium unit owners with relatively few obligations on the part of the lessor. Such leases may or may not be unconscionable in any given case. Nevertheless, the Legislature finds that a combination of certain onerous obligations and circumstances warrants the establishment of a rebuttable presumption of unconscionability of certain leases, as specified in subsection (1). The presumption may be rebutted by a lessor upon the showing of additional facts and circumstances to justify and validate what otherwise appears to be an unconscionable lease under this section. Failure of a lease to contain all the enumerated elements shall neither preclude a determination of unconscionability of the lease nor raise a presumption as to its conscionability. It is the intent of the Legislature that this section is remedial and does not create any new cause of action to invalidate any condominium lease, but shall operate as a statutory prescription on procedural matters in actions brought on one or more causes of action existing at the time of the execution of such lease.

(3) Any provision of the Florida Statutes to the contrary notwithstanding, neither the statute of limitations nor laches shall prohibit unit owners from maintaining a cause of action under the provisions of this section.

History.—s. 3, ch. 77-221; s. 11, ch. 94-350.

F.S. 718.122 on Google Scholar

F.S. 718.122 on Casetext

Amendments to 718.122

Arrestable Offenses / Crimes under Fla. Stat. 718.122

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

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 718.122.

Annotations, Discussions, Cases:

Cases from cite.case.law:

GROVE ISLE ASSOCIATION, INC. v. GROVE ISLE ASSOCIATES, LLLP,, 137 So. 3d 1081 (Fla. Dist. Ct. App. 2014)

. . . unfair, unreasonable, and unconscionable, and consequently, void and unenforceable, pursuant to sections 718.122 . . . Declaration in certain situations) of the Declaration are void and unenforceable pursuant to sections 718.122 . . .

In COLONY BEACH TENNIS CLUB ASSOCIATION, INC. v., 454 B.R. 209 (Bankr. M.D. Fla. 2011)

. . . 3), which (1) declare a ninety-nine-year recreational facilities lease unconscionable under Section 718.122 . . . In accord with Section 718.122(g), the pertinent tax year for determining the “appraised value of the . . . However, Oscher acknowledged (1) that Section 718.122(g) requires an assessment of the leased property . . . Fishkind testified that he conducted no analysis under Section 718.122(g), the bankruptcy judge described . . . Fishkind as an expert witness “testifying to value” under Section 718.122(g) and rejected Dr. . . .

In COLONY BEACH TENNIS CLUB ASSOCIATION, INC. v. W. W. L. L., 423 B.R. 690 (Bankr. M.D. Fla. 2010)

. . . Stat. § 718.122 (2008). a. The Lease Is Presumptively Unconscionable Under Fla. Stat. § 718.122. . . . Section 718.122(1) provides that a lease pertaining to use by condominium unit owners of recreational . . . All parties conceded that the Lease satisfies all of the enumerated factors under Section 718.122(1) . . . Stat. § 718.122(1)(b)-(d) (1981)). . . . Moreover, the Association is not seeking to apply Section 718.122 retroactively as an affirmative claim . . .

BASCH, v. HOPSON,, 831 So. 2d 760 (Fla. Dist. Ct. App. 2002)

. . . See § 718.122(2)(a)l., Fla. . . .

FLORIDA DISCOUNT PROPERTIES, INC. a v. WINDERMERE CONDOMINIUM, INC. a, 786 So. 2d 1271 (Fla. Dist. Ct. App. 2001)

. . . Section 718.122(l)(a)-(i), Florida Statutes (1997), contains detailed guidelines for determining whether . . .

FLORIDA DISCOUNT PROPERTIES, INC. v. WINDERMERE CONDOMINIUM, INC. a, 763 So. 2d 1085 (Fla. Dist. Ct. App. 2000)

. . . trial court, concluding that there was a presumption that this lease is unconscionable under section 718.122 . . .

MAISON GRANDE CONDOMINIUM ASSOCIATION, INC. v. DORTEN, INC. L. a, 621 So. 2d 762 (Fla. Dist. Ct. App. 1993)

. . . Defendants seeking to have the rent escalation provision declared unconscionable pursuant to section 718.122 . . . because this cause of action, which asserts that the clause is unconscionable as violative of section 718.122 . . . Additionally, section 718.122 does not create a new cause of action, but rather creates a rebuttable . . . Section 718.122, which became effective July 1, 1977, establishes a rebuttable presumption that a lease . . . actions brought on one or more causes of action existing at the time of the execution of such lease.” § 718.122 . . .

SKY LAKE GARDENS RECREATION, INC. v. SKY LAKE GARDENS NOS. AND INC. SKY LAKE GARDENS NOS. AND INC. v. SKY LAKE GARDENS RECREATION, INC., 574 So. 2d 1135 (Fla. Dist. Ct. App. 1991)

. . . D1693 (Fla. 3d DCA June 26, 1990); 718.122, Fla.Stat. (1989). . . . rental escalation be unconscionable in fact, relief would be available under Steinhardt and section 718.122 . . .

SKY LAKE GARDENS RECREATION, INC. v. SKY LAKE GARDENS NOS. AND INC. SKY LAKE GARDENS NOS. AND INC. v. SKY LAKE GARDENS RECREATION, INC., 567 So. 2d 1026 (Fla. Dist. Ct. App. 1990)

. . . D1693 (Fla. 3d DCA June 26, 1990); 718.122, Fla.Stat. (1989). . . . rental escalation be unconscionable in fact, relief would be available under Steinhardt and section 718.122 . . .

P. BEEMAN, v. ISLAND BREAKERS, A CONDOMINIUM, INC., 577 So. 2d 1341 (Fla. Dist. Ct. App. 1990)

. . . The Beemans next contend that the trial court erred by applying section 718.122, Florida Statutes (1987 . . . In connection with its assertion of uncon-scionability, Island Breakers invoked section 718.122, Florida . . . The trial court relied, in part, on section 718.122 in reaching its decision. . . . Island Breakers argues that since section 718.122 was enacted in 1977, there is an impairment of the . . . Id. § 718.122(2). . . .

ROYAL PALM BEACH COLONY, INC. v. GREENWAY VILLAGE SOUTH ASSOCIATIONS NO. AND INC. a D. J. ROYAL PALM BEACH COLONY, INC. v. GREENWAY VILLAGE SOUTH ASSOCIATION NO. INC. No. No. No., 443 So. 2d 1034 (Fla. Dist. Ct. App. 1983)

. . . Whether pursuant to Section 718.122, Florida Statutes (1977) the recreational lease was facially unconscionable . . .

ISLAND WINDS CONDOMINIUM BATH RACQUET CLUB ASSOCIATION, INC. R. v. F. WETTINGFIELD, F. J. Co. B. R. T. W. Jr., 440 So. 2d 455 (Fla. Dist. Ct. App. 1983)

. . . The trial court was correct in finding that the requirements of section 718.122, Florida Statutes (1981 . . .

KING MOUNTAIN CONDOMINIUM ASSOCIATION, INC. v. GUNDLACH,, 425 So. 2d 569 (Fla. Dist. Ct. App. 1982)

. . . failed to consider and apply the rebuttable presumption of unconsciona-bility set forth in Section 718.122 . . .

F. STEINHARDT v. RUDOLPH RUDOLPH v. F. STEINHARDT, 422 So. 2d 884 (Fla. Dist. Ct. App. 1982)

. . . warrants the establishment of a rebuttable presumption of unconscionability of certain leases.... ” § 718.122 . . . These onerous obligations and circumstances are, in turn, set out in Section 718.122(1), Florida Statutes . . . lease presumptively unconscionable “irrespective of the date on which such lease was entered into....” §718.122 . . . See e.g., § 718.122(l)(e)(h), Fla.Stat. (1981). . . . See e.g., § 718.122(l)(b)(c)(d), Fla.Stat. (1981). . . .

G. DUBOWITZ v. CENTURY VILLAGE EAST, INC. a a, 385 So. 2d 1116 (Fla. Dist. Ct. App. 1980)

. . . further requested memoranda on whether the suit should be dismissed, specifically in relation to Section 718.122 . . .

STRATHMORE RIVERSIDE VILLAS CONDOMINIUM ASSOCIATION, INC. v. PAVER DEVELOPMENT CORPORATION, 369 So. 2d 971 (Fla. Dist. Ct. App. 1979)

. . . because it alleged only eight of the nine elements of presumptive unconscionability set forth in Section 718.122 . . .

R. BENNETT, M. v. BEHRING CORPORATION, Al A. D. M. A. H. J. C. J. K. E. P. R., 466 F. Supp. 689 (S.D. Fla. 1979)

. . . Case, 342 So.2d 815 (Fla.1976) wherein the Court noted that while F.S. 718.122 did not apply in an attempt . . .