place a definable limit upon the time within which the remedy may be pursued in court. A real estate purchaser may enter into a contract which provides for payments for a period extending beyond three years. It is quite likely that he will not discover fraudulent conduct on the seller's part until he completes the payments and calls for performance. It would be absurd to hold that he could not sue because three years had run since the signing of the contract. Both the language of § 1711 and the intent of the Original Act are implemented rationally by interpreting "sale" to include not only the signing of the agreement but also all the steps implementing the agreement up to and including delivery of the deed. Interpreting § 1711 of the Original Act in that fashion leads to the conclusion that plaintiffs' action is not barred by the three-year limitation period since they made a payment as recently as January 22, 1979 and instituted this action on July 1, 1980.
Amended Statute of Limitations
The 1979 amendments of the Original Act changed the limitations periods contained in § 1711. If applicable to this case, the impact upon plaintiffs' claims would be as follows:
There is no over-all three-year limitation period as there was in Original § 1711.
To the extent that plaintiffs rely on charges that the property report contained an untrue statement of a material fact or omitted to state a material fact required by the Amended Act in violation of new § 1703(a)(1)(C), the time limit is three years after signing of the contract of sale. New § 1711(a)(1). Thus, to the extent that plaintiffs rely on false statements or omissions in the property report without more, their claims are barred under the Amended Act, since their action was instituted more than three years after the signing of the contract. Under the Original Act claims of this nature were covered by Original § 1709(b)(2) and were required to be brought within one year after discovery of the untrue statement or omission or after such discovery should have been made, Original § 1711. Thus, if the Amended Act's limitation period is applicable it eliminates plaintiffs' claim based solely on false statements or omissions in the property report, a claim which would have been timely under the Original Act if not discovered, or if it should not have been discovered, prior to the one-year period.
However, plaintiffs' essential charges are based on fraud committed both by means of misstatements and omissions in the property report and by means of other misstatements and omissions. This conduct constitutes a violation of new § 1703(a)(2)(A), (B) and (C). See House Conference Report, 96 Cong. Sess. 153; (1979) U.S.Code Cong. & Admin.News, 2447, 2448. The time for bringing an action on account of conduct of this nature is three years after discovery of the violation or after discovery should have been made by the exercise of reasonable diligence. New § 1711(a)(2). This replaces the Original Act's two-year time limitation, Original § 1711, § 1709(b)(1), which, I have concluded, commenced to run upon the last payment induced by the fraud. Under this interpretation it is immaterial whether the Original Act's or the Amended Act's limitation period is applicable. It cannot be said that plaintiffs' fraud claims are barred by either limitation provision. Thus, the question of the retroactive effect of the Amended Act will not be determined at this time. See, however, Fitzgerald v. Century Park, Inc., 642 F.2d 356 (9th Cir. 1981), which holds that the amendments are not retroactive and do not apply to transactions completed before the effective date of the amendments. See also, Davis v. Rio Rancho Estates, Inc., 401 F. Supp. 1045 (S.D.N.Y.1975). Should factual issues which might require a determination of this question arise at trial, issues such as the date of discovery of the alleged fraud or which payments were induced by the alleged fraud, special interrogatories can be submitted to the jury and a determination of the retroactivity question made then.
For the reasons set forth above, Deltona's motion for summary judgment on Count I on the ground that it is barred by the Interstate Land Sales Full Disclosure Act statute of limitations is denied.
Punitive Damages under the Act
Recovery of damages for violation of the provisions of the Act is treated in § 1709. The Original Act provided:
(c) The suit authorized under subsection (a) or (b) of this section may be to recover such damages as shall represent the difference between the amount paid for the lot and the reasonable cost of any improvements thereto, and the lesser of (1) the value thereof as of the time such suit was brought, or (2) the price at which such lot shall have been disposed of in a bona fide market transaction before suit, or (3) the price at which such lot shall have been disposed of after suit in a bona fide market transaction but before judgment.
(e) In no case shall the amount recoverable under this section exceed the sum of the purchase price of the lot, the reasonable cost of improvements, and reasonable court costs.