Salazar v. Santa Barbara Townhomes of Homestead, Inc. ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 04, 2009
No. 08-14608 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-21459-CV-JAL
YOLANDA SALAZAR,
MARLON SALAZAR,
GLADYS MCBRIDE,
Plaintiffs-Appellants,
versus
SANTA BARBARA TOWNHOMES OF HOMESTEAD, INC.,
a Florida corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 4, 2009)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Yolanda Salazar, Marlon Salazar, and Gladys McBride (“Purchasers”)
appeal the district court’s order granting Santa Barbara Townhomes of Homestead,
Inc.’s (“Santa Barbara”) motion to dismiss. The Purchasers allege that Santa
Barbara violated the Interstate Land Sales Full Disclosure Act (“ILSFDA”), 15
U.S.C. § 1701 et. seq., by failing to file a statement of record with the Department
of Housing and Urban Development and by omitting several provisions required
by ILSFDA from their purchase contracts. Santa Barbara contends that the
purchase agreements are exempt from ILSFDA pursuant to 15 U.S.C. § 1702(a)(2).
Section 1702(a)(2) provides that ILSFDA “shall not apply to . . . the sale or
lease of land under a contract obligating the seller or lessor to erect such a building
thereon within a period of two years. . . .” Santa Barbara’s contracts with the
Purchasers provide that Santa Barbara “is required to complete and does agree that
the construction of the Home will be completed within a period of two (2) years
from Purchaser’s execution of this Agreement.” The contracts further provide that
“[i]t is the express intent of the parties that the parties’ rights and obligations under
this Agreement be construed in the manner necessary to exempt this Agreement
and the sale of the Home from registration under the Interstate Land Sales Full
Disclosure Act, and both Purchaser and Seller hereby expressly waive ay right or
provision of this Agreement that would otherwise preclude exemption.” Thus,
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Santa Barbara’s contracts with the Purchasers are exempt from ILSFDA because
the contracts provide that Santa Barbara “is required” to complete construction on
each home “within a period of two (2) years. . . .”
In Samara Development Corp. v. Marlow, 556 So. 2d 1097, 1101 (Fla.
1990), the Supreme Court of Florida held “that without the availability of at least
both specific performance and damages the obligation to complete the construction
within two years is illusory.” Relying on Samara, the Purchasers contend that their
contracts do not actually obligate Santa Barbara to complete construction within
two years because the contracts limit their ability to seek specific performance or
damages.
Both specific performance and damages are available to the Purchasers
under their contract with Santa Barbara. Although, in Section 16, the contract
generally limits the Purchasers’ remedy for Santa Barbara’s breach to a return of
their deposit and liquidated damages, the contract specifically provides that
“[n]otwithstanding anything contained in this Section 16 to the contrary, in the
event of Seller’s default under Section 9 [requiring completion within two years]
of this Agreement, the Cure Period shall not apply and Purchaser shall have all
remedies available at law and in equity without limitation or restriction.” A
provision providing for “all remedies available at law and in equity without
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limitation or restriction” more than satisfies the standard for obligation set out in
Samara. Additionally, we agree with the district court that the contracts’
prohibition on the filing of a lis pendens does not foreclose the Purchasers’
equitable remedies.
CONCLUSION
Upon review of the parties’ briefs and the record, we discern no reversible
error. Accordingly, we affirm the district court’s well reasoned order.
AFFIRMED.
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