MILTON B. HOLLANDER AND BETTY R. HOLLANDER, APPELLANT,
v.
K-SITE 400 ASSOCIATES, A FLORIDA GENERAL PARTNERSHIP, THROUGH BEN FRANKLIN PROPERTIES 440, INC., A FLORIDA CORPORATION, ITS GENERAL PARTNER, AND CHICAGO TITLE INSURANCE COMPANY, APPELLEES
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The appellate court reversed a final judgment against the Hollanders, finding that the developer K-Site 400 Associates breached their condominium purchase contract. The court held that the developer's failure to obtain a valid certificate of occupancy by the contract deadline entitled the Hollanders to a return of their deposit.
Yes, the developer breached the contract by failing to have the condominium unit ready for occupancy by the contract deadline. Therefore, the plaintiffs were entitled to a return of their deposit.
[1] A developer defaults on a purchase and sale contract when a condominium unit is not ready for occupancy by the contractually stipulated date, absent exceptions that justi…
[2] A party may not rely on the defense of anticipatory breach of contract when they themselves are in breach of the contract.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the certificate of occupancy for the subject condominium unit was not issued by Dade County until March 6, 1991 and that a prior certificate of occupancy was issued in error”
Establishes a key fact regarding the delayed and erroneous certificate of occupancy.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Hollanders entered into a contract to purchase a condominium unit with a required occupancy date of November 2, 1990. A certificate of occupancy w…
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PER CURIAM.
This is an appeal by the plaintiffs Milton B. and Betty R. Hollander from an adverse final judgment entered after a non-jury trial in an action seeking the return of their deposit on the purchase of a condominium unit.
Because on this record it is uncon-tradicted that (1) the certificate of occupancy for the subject condominium unit was not issued by Dade County until March 6, 1991 and that a prior certificate of occupancy was issued in error, and (2) the sale and purchase contract between the parties required that the subject condominium unit be ready for occupancy by November 2, 1990, subject to certain exceptions for delays in construction which, all agree, could not possibly justify a delay to March 6, 1991, based on the evidence adduced below, we conclude that the defendant developer K-Site 400 Associates, et al., defaulted on the subject contract of purchase and sale by failing to have the subject condominium unit ready for occupancy at a time prior to November 2, 1990 as required by the said contract; accordingly, the plaintiffs were entitled under the contract to a return of their deposit.
Moreover, the defendants may not rely on the defense of anticipatory breach of contract because the plaintiffs did not commit such a breach; the defendants never treated plaintiffs’ action as such a breach; and, in any event, the defendants were themselves in breach of the contract by failing to complete the condominium unit for occupancy within the time prescribed by the contract. Morley v. Trafalgar Developers of Fla., Ltd., 455 So. 2d 391, 394 (Fla. 3d DCA 1984), rev. denied, 464 So. 2d 556 (Fla.1985); see Hospital Mortgage Group v.
First Prudential Dev. Corp., 411 So. 2d 181 (Fla.1982); Pallardy-Watrous Ins. Agency v.
M. Tucker, Inc., 120 Fla. 895, 163 So. 284 (1935). See generally Restatement (Second) of Contracts § 254 (1979).
The final judgment under review is reversed and the cause is remanded to the trial court with directions to enter judgment for the plaintiffs in this action.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hollander v. K-Site 400 Assocs., 657 So. 2d 16 (Fla. 3d DCA 1995)…agent, Chicago Title, to return only those deposit funds held on the date the lawsuit was served. We reverse and direct the trial court to follow the mandate of this court in Hollander v. K-Site 400 Assocs. Through Ben Franklin Properties 440, Inc., 630 So. 2d 1153 (Fla. 3d DCA 1993). A trial court does not have discretionary authority to alter or modify an appellate court’s mandate. See O.P. Corp. v. Village of N. Palm Beach, 302 So. 2d 130 (Fla.1974); Berger v. Leposky, 103 So. 2d 628 (Fla.1958); Modine Mf…
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Harvey v. Lake Buena Vista Resort, LLC, 568 F. Supp. 2d 1354 (M.D. Fla. 2008)…arties executed the Purchase Agreement. Doc. No. 1-3 ¶ 14. As Plaintiffs point out, under Florida law, a home is not “complete” until a certificate of occupancy is obtained and the buyer is able to occupy the home. Hollander v. K-Site Assocs., 630 So.2d 1153, 1154 (Fla. 3d DCA 1993). Para *1367 graph 14 of the Purchase Agreement demands that the term “completion date” must be interpreted in manner consistent with 15 U.S.C. § 1702(a) (2). According to HUD Guidelines interpreting the ILSF-DA, a unit…
Authorities Cited
- Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So. 2d 181 (Fla. 1982)
- Pallardy-Watrous Ins. Agency v. M. Tucker, Inc., 120 Fla. 895 (Fla. 1935)
- Morley v. Trafalgar Developers OF Fla., Ltd., 455 So. 2d 391 (Fla. 3d DCA 1984)