In short: Sometimes. When the contract and condominium documents sell a unit as part of a hotel condominium, a buyer may be able to rescind if no hotel operation exists at closing. In 17315 Collins Avenue, LLC v. Vacca, a Miami-Dade trial court entered judgment for a buyer on breach of contract and rescission of a condo-hotel unit purchase. The developer argued the contract never required hotel services before closing and that the buyer’s fee motion was late under rule 1.525, but the Third District affirmed without a written opinion on August 1, 2012.
The Facts
The developer, 17315 Collins Avenue, LLC, sold residential units in a 23-story project on Collins Avenue structured as a condominium hotel. According to the argument, the residential condominium occupied floors 6 through 21, and the developer kept the rest of the building and the hotel components. Davide Vacca, a buyer, sued for breach of contract and rescission. The trial court entered final judgment for the buyer, denied the developer’s own breach of contract claim, and later awarded the buyer attorney’s fees. The developer appealed (No. 3D11-1871), and the case was argued on July 10, 2012. Barbara J. Riesberg argued for the developer and Loren S. Granoff for the buyer. The points below are what the lawyers argued, not findings by the court.
- The developer argued the review was de novo contract interpretation and that nothing in the purchase agreement or condominium documents required hotel services and amenities to be in place at closing. The buyer had to close once a certificate of occupancy issued, and the documents only said the project was “structured to operate as a hotel” and that hotel services were “presently contemplated.”
- The developer relied on disclaimers that it made no warranty about which facilities would be built, and on case law that written contract terms control over earlier promotional statements.
- The panel pushed back. Judges distinguished optional facilities such as a pool, spa or restaurant from the basic hotel functions, such as reception, concierge and valet, that make a unit a condo-hotel unit at all, and asked when, if ever, the developer had to provide them.
- The buyer argued the condominium documents themselves described a hotel condominium with occupancy restrictions, and that owners bought to place units with a hotel operator. A hotel operator announced in 2005 was out by the end of 2007, and the developer’s own affiliate did not become the operator until March 2009.
- On fees, the developer argued the buyer served the fee motion about 60 days after the final judgment, beyond the 30 days allowed by rule 1.525, and that reserving jurisdiction is not the same as awarding entitlement. The buyer argued the contract’s prevailing-party clause and the pleadings gave full notice of the fee claim.
The Decision
The Third District affirmed on August 1, 2012. The ACIS docket lists the disposition as “Per Curiam Affirmed,” with no written opinion, and the mandate issued on August 24, 2012.
The affirmance leaves the buyer’s judgment in place. Because there is no opinion, it does not establish that every condo-hotel developer must have hotel services running at closing, or that a late fee motion is excused whenever a contract has a fee clause. It decides only this case.
The Law
Condo-hotel units are condominium units under Florida’s Condominium Act, chapter 718, but the declaration and purchase contract usually limit owner use and give the developer or a hotel operator control of rentals and common areas. Whether a buyer can rescind depends on the contract and the condominium documents read together, and on whether what was delivered is the essence of what was sold.
Florida Rule of Civil Procedure 1.525 requires a party seeking costs or attorney’s fees to serve a motion no later than 30 days after the judgment is filed. The developer pointed to a 2006 Florida Supreme Court decision applying that deadline strictly, and the buyer to a 2009 decision recognizing that it does not apply the same way when the judgment itself already determines entitlement. Courts continue to apply the 30-day rule closely, so the safe course is to file the fee motion within 30 days every time.
Lessons
- Buyers in condo-hotel projects should read the declaration, the hotel or rental program documents and the purchase contract together, not just the brochure.
- Developers who sell a product as a hotel condominium may have trouble arguing they never had to deliver a hotel.
- Disclaimers about optional facilities may not reach the core features that define what was sold.
- File the motion for attorney’s fees within 30 days of the judgment under rule 1.525, even if the judgment reserves jurisdiction and the contract has a fee clause.
- A per curiam affirmance decides only this case.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
👨⚖️ Were the Hotel Amenities Required to Be in Place Before Closing?
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- Condo-Hotel Buyers Promised No Shared Costs Lost to the Declaration (Rothbort v. CSC Mayfair)
- Condo Buyers Lose Rescission but Get a Shot at Their $6.1 Million Deposits (Hess v. PMG-S2 Sunny Isles)
- $10 Recited but Never Paid: Can You Rescind the Deal? (Weiss v. MSR Partners)
Frequently Asked Questions
What is a condo-hotel unit in Florida?
It is a condominium unit in a building run, in whole or part, as a hotel. Owners usually face occupancy limits and can rent through a hotel program, while the developer or an operator controls the hotel functions. The declaration and contract define the owner’s rights.
Can I cancel a pre-construction condo-hotel purchase if the hotel never opens?
Possibly, depending on the contract and condominium documents. In 17315 Collins Avenue v. Vacca, a buyer won rescission and breach of contract claims where hotel services were not in place at closing, and the Third District affirmed without an opinion.
Do promises in condo sales brochures count?
Usually the written contract and condominium documents control, and many contracts say oral and advertising statements are not relied on. But a developer that builds the whole product around a feature, like a hotel, may still be held to deliver it.
How long do I have to ask for attorney's fees after winning in Florida?
Under rule 1.525, serve the motion for fees and costs within 30 days after the judgment is filed. In Vacca, the developer argued the buyer’s motion came about 60 days later, but the fee award was affirmed without an opinion, so do not rely on that outcome.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
