Wednesday, August 26, 2009

Fourth District Interprets § 718.302(1), Fla. Stat

In Comcast of Florida, L.P. v. L’Ambiance Beach Condominium Association, Inc. (4D08-2326), the Fourth District found "no error and affirm, but write to address the application of section 718.302."

Following the incorporation of the homeowner’s association and the developer’s hand over, the unit owners voted to terminate the agreement [with Comcast]. The Association’s counsel sent Comcast written notice of termination in accordance with section 718.302. Two additional letters were sent, notifying Comcast of the Association’s intent to terminate the agreement and addenda and instructing Comcast to open its distribution lock boxes.

Comcast brought an action for declaratory relief, breach of the agreement and addenda, trespass, and permanent injunctive relief. Before a hearing could be held on Comcast’s Emergency Motion for Temporary Injunction, the Association hired a locksmith to drill holes in Comcast’s distribution lock boxes to allow another provider access to Comcast’s cables. As a result, all of the residential units were switched from Comcast to another provider. Comcast’s wires remained in place in the event a unit owner desired to maintain service with Comcast.


Comcast argues that the court erred in applying section 718.302 to the agreement and addenda. Specifically, Comcast argues a cable television service contract is not an agreement “that provides for operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium.” § 718.302(1), Fla. Stat.


Comcast installed wires and lock boxes to provide cable television services to all the unit owners. By virtue of the agreement, Comcast operated and maintained the system that it installed. Further, section 718.115(1)(d), Fla. Stat. (2002), provides that the cost of cable television service obtained pursuant to a bulk rate contract is deemed a common expense.


Because the agreement provided for the cable television service for all unit owners, the cost was part of the monthly maintenance fee, and the service provider was required to service and maintain the cable television, we conclude that the agreement was one for the “operation, maintenance, or management” of the cable television services. § 718.302(1), Fla. Stat. Therefore section 718.302 applies to the agreement and addenda.


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