Whether as a result of market conditions, evolving golfer preferences, or the financial realities of operating a golf course, golf courses in Florida regularly change hands. Below are some key issues to account for when preparing to purchase or sell a golf course in Florida.
The sale of a golf course typically includes both real property and personal property. The buyer and seller are encouraged to engage legal counsel early in the process due to the potential consequences of exchanging preliminary communications which may constitute a binding contract. Magnum Capital, LLC v. Carter & Associates, LLC, 905 So. 2d 220 (Fla. 1st DCA 2005) (letters between parties raised a colorable claim for a breach of contract action with respect to the sale of real property including golf courses for $43 million). Instead, the agreement to sell a golf course should be memorialized in a purchase and sale agreement ("PSA") signed by the buyer and the seller.
- Title. A title commitment will identify the current ownership of the real property and liens, encumbrances, and other matters affecting title to the real property. Save Calusa Trust v. St. Andrews Holdings, Ltd., 193 So. 3d 910 (Fla. 3d DCA 2016) (holding that restrictive covenant limiting the property's use to a golf course, which was recorded in compliance with a government-imposed condition for such land use approval, was not a title interest subject to extinguishment by Florida's Marketable Record Title Act). A title policy issued in the name of the buyer at closing will provide the buyer with insurance from financial loss in the event there is a title defect which is covered by the policy. Title insurance policies in Florida are based on the Florida Department of Insurance's promulgated rates, meaning that title insurance premiums charged by title insurers, attorney title agents, and title companies are uniform throughout Florida.
- Survey. The average 18-hole golf course exceeds 100 acres, and a resort golf course may approach 200 acres. Accordingly, surveyors need sufficient lead time to survey a golf course. An existing golf course survey may expedite the surveyor's preparation of a new survey and reduce the cost to the buyer. The survey will reveal the boundaries of the golf course, identify improvements such as the pro shop and maintenance facilities, locate encumbrances described in the title commitment, and identify encroachments. Failure to obtain a new survey will result in a general survey exception appearing on the title insurance policy, excepting from the title insurance policy any state of facts that would be shown by an accurate survey and inspection of the land.
- Environmental. Depending on the history and use of a given golf course, it is possible to encounter pollution of ground water and surface water caused by pesticides, fertilizers, and other contaminants. In order to fully appreciate the current environmental status of a golf course, an environmental consultant should be engaged early in the process to conduct the appropriate studies and prepare the relevant environmental reports.
- Physical improvements. Physical improvements to the golf course may include a pro shop, clubhouse, and maintenance facilities. Roofing, HVAC, plumbing, and electrical systems should be inspected. Since the doctrine of caveat emptor (buyer beware) generally applies to the purchase and sale of commercial real estate in Florida, it is incumbent on the buyer to investigate the condition of various aspects of the property. Green Acres, Inc. v. First Union National Bank of Florida, 637 So. 2d 363 (Fla. 4th DCA 1994) (caveat emptor applies to sales of commercial property).
In addition to real property, a golf course may own or lease personal property used in connection with its operation. Examples of such personal property include the following:
- Furniture, Fixtures, and Equipment. Many golf courses lease golf carts and equipment pursuant to lease agreements. Analysis of such lease agreements will reveal matters such as regular lease payments, termination rights, termination fees, assignment rights, duration, and equipment maintenance obligations. Elha Development Corp. v. Jeffrey Allen, Inc., 428 So. 2d 292 (Fla. 2d DCA 1983) (holding there was sufficient evidence to support finding of purchaser's assumption of golf cart leases). In addition, a list of furniture, fixtures, and equipment owned by the golf course (as opposed to leased) will need to be compiled and analyzed.
- Inventory. An inventory list of merchandise, food, beverages, flatware, tableware, and other valuable inventory used in connection with the golf course and clubhouse should be compiled.
- Point of Sale System. Through a point of sale system, a golf course manages tee times, sells merchandise, schedules lessons, etc. The contract for the point of sale system should be reviewed to confirm regular fees, termination rights, termination fees, assignment rights, etc.
- Liquor License. If the golf course owns a liquor license, then arrangements should be made for the transfer of the liquor license to the buyer, including completion of the Florida Department of Business & Professional Regulation's Application for Transfer of Ownership of an Alcoholic Beverage License Form ABT-6002.
- Permits, Approvals, Licenses, and Certificates. Irrigation permits, development approvals, business licenses, and similar entitlements should be investigated. Irrigation and drainage issues can significantly affect a golf course's operating costs. City of Orlando v. West Orange Country Club, Inc., 9 So. 3d 1268 (Fla. 5th DCA 2009) (payment required for reclaimed water supplied to golf course); City of Key West v Key West Golf Club Homeowners' Association, Inc., 228 So. 3d 1150 (Fla. 3d DCA 2017) (stormwater utility fees charged for drainage).
- Architectural Plans/Engineering Drawings. Architectural plans and engineering drawings in the possession of the seller may be beneficial to the buyer for future repairs to or remodeling of existing structures.
- Other Property. Trademarks, tradenames and logos, telephone numbers, websites, email addresses, and social media (and login credentials) should be addressed in the PSA.
A detailed discussion of the tax implications associated with the purchase and sale of an asset is beyond the scope of this article, but several noteworthy tax issues are as follows:
- Florida Sales Tax. When a business or stock of goods is sold, the unpaid sales tax liability (if any) of the former owner may transfer to the buyer, unless the Florida Department of Revenue issues a Certificate of Compliance or conducts a transferee liability audit. Accordingly, the seller should apply for and provide the buyer with a Certificate of Compliance prior to closing.
- Documentary Stamp Tax. Documentary stamp tax paid in connection with the sale of the golf course. The PSA should specifically allocate liability for payment of documentary stamp tax, the amount of which is dependent on the purchase price of the real property.
- Federal Income Tax. Use of the 1031 tax-deferred exchange may be desirable in connection with the purchase and sale of real property. Advance planning is necessary for any party who intends to utilize a 1031 exchange, and a specific provision in the PSA should address cooperation of the parties in relation to a 1031 exchange.
Distressed sales of golf courses are not uncommon. Depending on the financial situation of the golf course, the owner of the golf course may file a petition for bankruptcy protection prior to selling the golf course. With proper planning, bankruptcy law may facilitate the following:
- Elimination of Documentary Stamp Tax. If the sale of a golf course is properly structured in bankruptcy as a post-confirmation transfer, the sale of a golf course may occur free from payment of documentary stamp tax which would otherwise be payable under nonbankruptcy law. Florida Department of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33 (2008) (holding that the Bankruptcy Code's stamp-tax exemption applies to transfers made pursuant to a confirmed plan).
- Rejection of Executory Contracts. Section 365 of the Bankruptcy Code allows the debtor to reject (terminate) executory contracts. For example, if golf course membership agreements are considered executory contracts, then the debtor may be able to reject such membership agreements. In re Sea Oaks Country Club, LLC, No. 20-bk-17228, 2020 WL 6588412, (Bankr. D.N.J. Nov. 10, 2020) (unpublished). If so rejected by the debtor, these terminated members would merely have with an unsecured claim against the debtor for damages.
- Warding Off Third-Party Claims Post-Closing. A sale of property of the bankruptcy estate under Section 363(f) of the Bankruptcy Code may be "free and clear of any interest in such property of an entity other than the estate." This type of sale allows the buyer to take property free of third-party claims, such as claims of the seller's trade creditors and others.
The purchase and sale of a golf course may include one or more of the following additional considerations:
- Management Agreements. It is possible that the owner of the golf course and the operator of the golf course are distinct entities. Since management agreements may be in place for the operation of the golf course and the clubhouse, a legal review of such management agreements should be performed.
- Vendor Agreements. Vendor agreements related to the operation of the golf course and clubhouse should also be reviewed for termination and assignment rights. A review of the seller's accounts receivables reports and supporting documentation should reveal whether the seller is current with its vendors.
- Employees. The termination or transition of employees resulting from the sale must comply with applicable employment laws and employment contracts. One or more of the seller's employees may need to support inquiries related to the buyer's due diligence. Further, the parties should develop a plan to communicate information to employees concerning the sale and their intentions following the sale in order to facilitate an orderly transition.
- Broker Commissions. Commissions payable to brokers in connection with the sale of the golf course may be owed. The PSA should specifically allocate responsibility among the parties for payment of any commissions to brokers. Brokers of commercial property have specific rights to payment of their commissions under Section 475.703, Florida Statutes. These rights may include a lien on owner's net proceeds from disposition of commercial real estate as well as a lien against the property itself. Milton Dadeland, LLC v. Abala, Inc., 145 So. 3d 175 (Fla. 3d DCA 2014) (broker not limited to asserting lien against proceeds; broker could assert lien against property where expressly permitted by contract).
As summarized above, the purchase and sale of a golf course is a complex transaction involving a number of considerations touching multiple areas of the law. In addition, redevelopment of a golf course for other purposes creates additional complexities not covered by this article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.