INDIAN RIVER COLONY CLUB, INC., APPELLANT,

v.

JOHN L. BAGG AND OLGA BAGG, HUSBAND AND WIFE, APPELLEES

W. SHARP, J., concurs.

THOMPSON, J., dissents, with opinion.

THOMPSON, J.,

dissenting.

I respectfully dissent. I would find the restrictions and covenants to be unlawful restraints on alienation.

Whether called a guaranteed buy-back provision or an option or right of first refusal, the provisions of the contract resulted in an unlawful and unreasonable restraint on the alienation of real estate. Regardless of the terminology, the effect of the provision is that the Baggs cannot sell the property for its appreciated value to purchasers they select and who are otherwise qualified to close on the property. The Club argues that the provision is a guarantee and therefore should be viewed differently. I disagree. A similar question was answered in Colen v. Patterson, 436 So. 2d 182 (Fla. 2d DCA), rev. denied, 438 So. 2d 831 (1983), that Colen held that whether an agreement is labeled an option or a right of first refusal is not relevant. What is relevant is whether the agreement was of indefinite duration and contained a fixed price for repurchase. In this case, the contract is for a fixed price of $112,277 plus the value of improvements, for an indefinite duration. It requires that the buyer and his heirs or assigns comply with all of the repurchase requirements. Thus, it is binding upon the Baggs’ heirs, successors and assigns, and creates covenants which are of unlimited duration as a matter of law. Fallschase Development Corp. v. Blakey, 696 So. 2d 833 (Fla. 1st DCA 1997).

This case is squarely controlled by Iglehart v. Phillips, 383 So. 2d 610 (Fla.1980). In Iglehart, the supreme court considered an option which was essentially a right of first refusal, for the repurchase of property which continued for an unlimited period of time and which established a fixed repurchase price. The repurchase price was established as the price paid for the land plus the cost of improvement. In this case, the contract requires a final repurchase price for an unlimited duration. There was nothing in the con tract that included any sum for the increase in the value of the property from the time of purchase to the time of sale. Further, the Club can prohibit the sale of the property unless it gives prior approval of the purchaser. All of these factors were considered by the Florida Supreme Court and found unenforceable because they interfered with alien-ability of the property. Iglehart, at 615, 616.

The Club does raise issues about equity: it has maintained the Baggs’ property and some of the expenses may not be covered by the Baggs’ monthly maintenance fee, which means that the Club did not get the benefit of its bargain with the Baggs when they sold the property. The remedy is to remand the case to the trial court to conduct an evidentiary hearing and then decide the relief to be granted the parties. Iglehart at 617.

For these reasons, I dissent.

. While Colen v. Patterson, 436 So. 2d 182 (Fla. 2d DCA), rev. denied, 438 So. 2d 831 (Fla.1983), like Iglehart itself, involved a right of first refusal rather than an option per se, the guarantee buyback provision in this case is neither an option contract nor a contract providing for a right of first refusal.