Avatar Properties, Inc. v. Gundel
The Sixth DCA affirmed a nearly $35 million class judgment holding that a developer's perpetual "Club membership fee" — pure profit above actual amenity expenses — is an illegal assessment under section 720.308, Florida Statutes, because chapter 720 limits assessments (including those payable to a developer or owner of recreational facilities under section 720.301(1)) to the member's proportional share of expenses. The court further held that the developer could not rely on a contractual waiver/estoppel clause to defeat the statutory protection, and that section 725.04 bars the voluntary payment defense for payments made pursuant to a contract. The court certified a question of great public importance to the Florida Supreme Court, over a lengthy dissent.
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