BB LANDMARK, INC., A FLORIDA CORPORATION, AS A GENERAL PARTNER OF BP LANDMARK ASSOCIATES, AS A FLORIDA GENERAL PARTNER OF B.P.M. ASSOCIATES, A FLORIDA GENERAL PARTNERSHIP, APPELLANT,
v.
BERTRAM M. HABER, AND SONIA E. HABER, APPELLEES

Fla. 3d DCA | 1993-06-08
No. 92-2450
Before BASKIN, COPE and GERSTEN, JJ.
619 So. 2d 448 Florida District Court of Appeal, Third District (1993) Positive Treatment
Cited by 10 cases

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Holding

A developer's unilateral increase in the cost of extras in a condominium contract constitutes a material and adverse amendment, triggering the buyer's statutory right to cancel the contract within 15 days.


Headnotes

[1] A condominium buyer may cancel a sales contract within 15 days of receiving notice of any amendment that materially alters or modifies the offering in a manner adverse to…

[2] A unilateral increase in the cost of extras in a condominium sales contract constitutes a material and adverse amendment to the offering.

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Facts & Procedural History

Buyers contracted for a condominium, including $10,384 for extras. The developer unilaterally increased the cost of these extras to $17,122. The buyer…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, BB Landmark, Inc. (the developer), appeals a summary judgment based on section 718.503(l)(a), Florida Statutes (1989), in favor of appellees, Bertram and Sonia Haber (the Habers). We affirm. This case concerns a condominium buyer’s right to cancel a condominium sales contract under section 718.503(l)(a) when a developer unilaterally increases the cost of extras in the contract.

Section 718.503(l)(a), Florida Statutes (1989), provides, in pertinent part:

(1) CONTENTS OF CONTRACTS. — Any contract for the sale of a residential unit ... shall:
(a) Contain the following legend in conspicuous type: ... THIS AGREEMENT IS ALSO VOIDABLE BY BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER’S INTENTION TO CANCEL WITHIN 15 DAYS AFTER THE DATE OF RECEIPT FROM THE DEVELOPER OF ANY AMENDMENT WHICH MATERIALLY ALTERS OR MODIFIES THE OFFERING IN A MANNER THAT IS ADVERSE TO THE BUYER. Factually, the Habers contracted to purchase a condominium from the developer. The contractual price included $10,384 for extras requested by the Habers. After entering into contract, the developer wrote to the Habers, and unilaterally increased the cost of the extras to $17,122.

Within 15 days of receipt of the developer’s increase, the Habers sent written notice of their intent to cancel the contract. Thereafter, the developer agreed to honor the original contract price.

The Habers sued to rescind the contract under section 718.503, Florida Statutes (1989). Thereafter, the Habers moved for summary final judgment under section 718.503 and the trial court granted their motion.

The developer contends that there was no material and adverse amendment to the offering which the Habers could use as a basis for cancellation. Further, the Habers were not prejudiced by the developer’s notice of the cost increase because the developer later agreed to honor the original contract. The Habers assert that the developer’s amendment was material and adverse, thus permitting statutory cancellation.

No court has interpreted the cancellation rights available under section 718.-503(l)(a), upon amendment by a developer. Therefore, our analysis turns on whether the developer’s actions, as a matter of law, constitute an amendment which materially alters or modifies the offering in an adverse manner pursuant to section 718.-503(l)(a).

When the language of a statute is clear and unambiguous, the statute must be given its plain and ordinary meaning. Aetna Casualty & Sur. Co. v. Huntington Nat’l Bank, 609 So. 2d 1315 (Fla.1992). Here, the statute clearly states that the buyer may cancel the contract upon receipt from the developer of any amendment “which materially alters or modifies the offering in a manner that is adverse to the buyer.”

The offering here was the subject matter of the contract — the condominium unit and the extras. The developer amended the original offering when it unilaterally increased the cost of the extras from $10,384 to $17,122. Because the statute is so clear, one does not need to refer to Glanvill’s Treatise1 for clarification. A dictionary will do.

“Materially” is defined as “to a significant extent or degree." The American Heritage Dictionary 806 (New College ed. 1981). The increase is significant here since it represents a 65% increase over the original cost of the extras. “Adverse” is defined as “[cjontrary to one’s interests or welfare; unfavorable.” Id. at 19. The Ha-bers’ additional indebtedness to the developer, for the same extras, was certainly not favorable to them.

By notifying the Habers of this amendment, the developer triggered the buyers’ statutory 15 day right to cancel. Once activated, the window period for cancellation did not close simply because the developer agreed to return to the original con tract. Cf. Harbour Square Dev. Corp. v. Miller, 517 So. 2d 773 (Fla. 2d DCA 1988) (buyer, with contractual right to cancel sales contract for commercial condominium units if buyer did not approve vendor’s proposed modification, could cancel even though vendor offered to rescind change). The developer’s actions yielded control of cancellation, albeit temporarily (15 days), to the Habers, who gave the required statutory written notice of cancellation.

We conclude that the Habers were adversely and materially affected by the developer's actions, and therefore affirm the summary judgment under section 718.-503(l)(a), Florida Statutes (1989).

Affirmed.

. Ranulph de Glanvill, Tractatabus de Legibus et Consuetudinibus Regni Anglie Qui Glanville Vo-catur (G.D.G. Hall ed. & trans. 1965).


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Cited By

  • D & T Props., Inc. v. Marina Grande Assocs., Ltd., 985 So. 2d 43 (Fla. 4th DCA 2008)
    …would “appreciably affect or influence” the function, use, or appearance of the building. Our definition of “material” called for an objective test, not one that depended on the particular sensibilities of a unit owner. BB Landmark, Inc. v. Haber, 619 So. 2d 448 (Fla. 3d DCA 1993), took a similar approach to its interpretation of the term “material” in section 718.503(l)(a), Florida Statutes (1989), the same statutory language that we confront here. The case involved a condominium purchase contract calling…
  • Mastaler v. Hollywood Ocean Grp., L.L.C., 10 So. 3d 1114 (Fla. 4th DCA 2009)
    …he buyer’s decision to enter into the contract.” D & T Props., Inc. v. Marina Grande Assocs., Ltd., 985 So. 2d 43, 49 (Fla. 4th DCA 2008). “‘Adverse’ is defined as ‘[c]ontrary to one’s interests or welfare; unfavorable.’” BB Landmark, Inc. v. Haber, 619 So. 2d 448, 449 (Fla. 3d DCA 1993) (quoting The American Heritage Dictionary 806 (New College ed.1981)). In this case, the amendment to the Purchase Agreement, i.e., the addition of nine cabanas by the pool, is adverse to Mastaler. This is because it is contr…
  • LEE v. ST. Johns Cnty. Bd. OF Cnty. Comm'rs, 776 So. 2d 1110 (Fla. 5th DCA 2001)
    …section 163.3215. To constitute a reviewable development order, the approval must change the Agency’s order “to an important degree” or “to a significant extent or degree.” See State v. Joyce, 361 So. 2d 406 (Fla.1978); B.B. Landmark, Inc. v. Haber, 619 So. 2d 448 (Fla. 3d DCA 1993). However, pursuant to St. Johns County Zoning Ordinance No. 11-9-6, a challenged decision of the Agency is subject to review by the County Commission by a de novo hearing. “De novo” means to try a matter anew, as though it had no…

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