This suit was brought by the buyer of a condominium unit seeking rescission of its contract to purchase the unit and the return of its deposit pursuant to the Interstate Land Sales Full Disclosure Act (ILSFDA), 15 U.S.C. §§ 1701-1720 (1982). The district court granted the seller’s motion for final summary judgment, concluding that the ILSFDA is not applicable to the sale of condominiums or, if the Act does apply, this particular sale was exempt because the buyer' was in the land sales business. We reverse.
I.
On July 8, 1981, Americor Realty Associates, a Florida general partnership, and Bruce E. Winter, Michael Arbetter, and Gary Stein, the general partners of Americor (buyer), entered into a contract to purchase a condominium unit from Hollingsworth Partnership (seller), a Florida general partnership. Construction of the condominim had not been completed at the time the contract was executed, and the contract did not obligate the seller to complete the building at any definite time. The seller did not provide the buyer with a printed property report before the contract was executed as required by the Interstate Land Sales Full Disclosure Act. 15 U.S.C. § 1703(a)(1)(B) (1982).
The buyer paid ten percent of the total purchase price to the seller as a deposit at the time the contract was made. It was required to pay an additional deposit of five percent when the condominium building was “topрed out” and the balance of the purchase price at closing. The buyer did not pay the additional five percent as required and failed to cure the default after being given notice and an opportunity to cure. On October 25, 1982, the seller notified the buyer that its deposit was forfeited.
On April 25, 1983, the buyer sought to exercise its right to revoke the contract and obtain the return of its deposit pursuant to the ILSFDA.
On August 25,1983, the buyer moved the court for summary judgment on the issue of liability. The court denied this motion on October 17. On October 20, the seller moved the court for summary judgment. The court heard argument from counsel on January 27, 1984, and granted the motion on May 18,
II.
To determine whether the ILSFDA applies to the sale of a condominium
A.
The ILSFDA was originally enacted as part of the Housing and Urban Development Act оf 1968. The bulk of this Act was directed toward making available suitable housing for low income level families through a series of interest subsidies, insurance provisions, loans, grants, and urban renewal provisions. In contrast, the
Congress did not draft the statute to apply solely to raw land, but made it applicable to the sale or lease of lots. The legislativе history of the Act indicates that Congress was concerned with the sale of fairly large numbers of undeveloped lots pursuant to a common promotional plan. Conf.Rep. No. 1785, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.Code Cong. & Ad.News 3053, 3066. The legislative history also employs the terms “land” and “real estate.” Id. Although Congress may have been primarily concerned with the sale of raw land, it struck a balance by making the statute applicable to all lots and providing an exemption, not for аll improved land, but for improved land on which a residential, commercial, condominium, or industrial building exists or where the contract of sale obligates the seller to erect such a structure within two years.
The key term that we must construe is “lot” because the sale or lease of any nonexempt lot triggers the provisions of the Act. Lot is not defined anywhere in the ILSFDA.
The application of the Act to condominiums has been сonsistent OILSR [9 ] policy since the issue was first raised in 1969. The bases for this position are that condominiums carry the indicia of and in fact are real estate, whether or not the units therein have been constructed. A condominium is accordingly viewed by OILSR as equivalent to a subdivision, each unit being a lot. Adverse comment, particularly from builders, asserts that condominiums are equivalent to houses and the sale of houses was not intended to be covered by thе Act. However, the right to condominium space is a form of ownership, not a structural description. This condominium concept is employed as an ownership form for completely horizontal developments and even for campgrounds. Congress recognized the need to exempt professional builders from the Act and provided an appropriate exemption (15 U.S.C. 1702[(a)(2)]). For a condominium unit sale to be exempted from the Act, it must accordingly qualify for*1448 exemption; i.e., either it must be completed before it is sold, or it must be sold under a contract obligating the seller to erect the unit within two years from the date the purchaser signs the contract of sale.
38 Fed.Reg. 23,866 (1973). HUD reiterated its position that the ILSFDA applies to the sale of condominiums in 1974, see 39 Fed. Reg. 7824 (1974), and in 1979, see 44 Fed. Reg. 24,012 (1979).
The courts afford great deference to the interpretation of a federal statute by the agency charged with administration of the statutory scheme. EPA v. National Crushed Stone Ass’n,
The ILSFDA was intended to curb abuses accompanying interstate land sales. The Act accomplishes that goal by including within it all sales of lots and then exempting a number of transactions, including sales of fully improved property. It is reasonable to conclude, as HUD did, that the term “lot” was used to refer generally to interests in realty. The legislative history supports this construction, employing the terms “lоt,” “land,” and “real estate” in discussing the Act. This construction is also reasonable in terms of the purpose of the statute. A fraudulent out-of-state sale of land is not rendered any less fraudulent if the condominium form of ownership is utilized.
As previously described, it is clear that HUD has considered condominium sales within the scope of the ILSFDA since its formal pronouncement in 1973, in which it maintained that this construction had been followed since 1969. In 1978, Congress was considering amendments to the ILSFDA. At the time, the Act exempted sales of improved land on which there is a residential, commercial, or industrial building or where the seller is obligated to complete such a structure within two years. Congress amended this provision explicitly to exempt condominium sales under the same circumstances, see supra note 7, noting that the HUD regulations did not provide such an exemption. See S.Rep. No. 871, 95th Cong,, 2d Sess. (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 4773, 4868. Congress was informed by a HUD representative that the amendmеnt would have no effect on the agency’s interpretation of the statute.
The obvious conclusion to be drawn from this history is that Congress was aware of
B.
The seller contends that, if condominium sales do come within the ILSFDA, the district court’s grant of summary judgment in its favor can still be upheld because the sale in question was exempt as “the sale ... of any improved land on which there is a ... condominium ... building.” 15 U.S.C. § 1702(a)(2) (1982). The seller arguеs that there can be no , “sale” until title to the unit is transferred. Because the buyer was not obligated to accept title until the unit was completed, the seller maintains that, at the time of the sale, the transaction would involve improved land on which there is a condominium.
We are unable to agree with the seller’s contentions. For the purposes of the ILSFDA the “sale” takes place at the time the purchaser signs the contract and incurs an obligatiоn. See Law v. Royal Palm Beach Colony, Inc.,
We decline to depart from the plain language of the statutory exemption. If at the time the purchaser signs the contract there exists a condominium building or the seller is obligated to erect such a building within two years, the sale is exempt from the Act. If, as in this case, no building exists at the time of contracting and the contract does not contain a binding obligation tо complete one within two years, compliance with the statute is required.
III.
The district court determined that, if the ILSFDA applies to the sale of a condominium, this particular transaction was exempt because the buyer was engaged in a bona fide land sales business. See supra note 5. The seller never raised this issue before the district court and has not argued the point on appeal as a ground to affirm the district court’s grant of summary judgment. The district cоurt’s conclusion appears to have been largely premised on the name of the buyer’s general partnership, Americor Realty Associates. No other facts appear in the district court’s order to support the conclusion that the buyer was in the land sales business. Our review of the record discloses no additional facts that could support such a finding. Accordingly, the court erred in determining that there was no genuine issue as to whеther the buyer was in the land sales business,
IV.
For the foregoing reasons, the district court’s order granting the seller’s motion for summary judgment is REVERSED and the case is REMANDED for proceedings consistent with this opinion.
REVERSED and REMANDED.
Notes
. 15 U.S.C. § 1703(a)(1)(B) (1982) provides that:
(a) It shall be unlawful for any developer or agent, directly or indirectly, to make use of any means or instruments of transportation or communication in interstatе commerce, or of the mails—
(1) with respect to the sale or lease of any lot not exempt under section 1702 of this title—
(B) to sell or lease any lot unless a printed property report, meeting the requirements of section 1707 of this title, has been furnished to the purchaser or lessee in advance of the signing of any contract or agreement by such purchaser or lessee.
The seller admitted that it used the mails and instruments of transportаtion or communication in interstate commerce in connection with the sale of the condominium in question.
. 15 U.S.C. § 1703(c) (1982) provides that:
In the case of any contract or agreement for the sale or lease of a lot for which a property report is required by this chapter and the property report has not been given to the purchaser or lessee in advance of his or her signing such contract or agreement, such contract or agreement may be revoked at the option of the purchaser or lessee within two years from the date of such signing, and such contract or agreement shall clearly provide this right.
The purchaser, upon complying with certain • conditions, is entitled to the return of all money
. 15 U.S.C. § 1709 (1982) specifies that a purchaser may bring an action at law or in equity to enforce the provisions of section 1703 and includes costs and reasonable attorneys’ fees in the amount recoverable. "The district courts of the .United States ... have jurisdiction of offenses and violations” under the ILSFDA. 15 U.S.C. § 1719 (1982).
. The provisions of 15 U.S.C. § 1703(a)(1) (1982) apply to the "sale or lease of any lot not exempt under section 1702.” (emphasis added). The Act further provides that it is unlawful to "sell or lease any lot unless a printed property report” has been furnished to the purchaser. 15 U.S.C. § 1703(a)(1)(B) (1982) (emphasis added).
. The district court referred to the regulations promulgated pursuant to the ILSFDA which . provide an exemption for transactions involving the "sale of lots to a person who is engaged in a bona fide land sales business." 24 C.F.R. § 1710.14(a)(3) (1985). The Secretary of Housing and Urban Development is granted the authority to exempt from the ILSFDA, by regulation, certain sales if he finds that the enforcement of the Act “is not necessary in the public interеst ... by reason of the small amount involved or the limited character of the public offering.” 15 U.S.C. § 1702(c) (1982). The statute contains a ■ similar provision, exempting from the Act “the sale or lease of lots to any person who acquires such lots for the purpose of engaging in the business of constructing residential, commercial, or industrial buildings or for the purpose of resale or lease of such lots to persons engaged in such business.” 15 U.S.C. § 1702(a)(7) (1982); see abo 24 C.F.R. § 1710.-5(g) (1985).
. The term "condominium” refers to a form of real estate ownership, rather than to any particular type of building. See 38 Fed.Reg. 23, 866 (1973). For example, the condominium form of ownership has been used frequently in the sale and development of private campgrounds, involving little more than raw land. See id.
. As originally enacted, the exemption covered improved land on which there is a residential, commercial, or industrial building or where the seller is obligated to construct such a building within two years. A 1978 amendment inserted the word condominium after commercial. See Housing and Community Development Amendments of 1978, Pub.L. No. 95-557, § 907(a)(1), 92 Stat. 2080, 2127. The importance of this amendment is discussed infra.
. The Act contains exemptions for the sale of lots in a subdivision of limited size. E.g., 15 U.S.C. § 1702(a)(1) (1982) (sale of lots in subdivision containing less than 25 lots); 15 U.S.C. § 1702(b)(1) (1982) (sale of lots in subdivision containing less than 100 lots); see also 15 U.S.C. § 1702(b)(2) (1982) (sale of lots in subdivision where not more than 12 lots sold in a year). The term subdivision is defined in the Act as "any land which ... is divided or is proposed to be divided into lots, whether contiguous or not, for the purpose of sale or lease as part of a common promotional plan.” 15 U.S.C. § 1701(3) (1982). It is necessary to construe the term "lots” before any meaning can be given to the definition of a subdivision.
. The Office of Interstate Land Sales Registration (OILSR) is the organization designated by the Secretary of HUD to administer the Act. See 15 U.S.C. § 1715(a) (1982).
. Other courts that have considered this issue have agreed that HUD's interprеtation is a reasonable one. E.g., Schatz v. Jockey Club Phase III, Ltd.,
. See supra note 6.
. Courts ordinarily do not attach much significance to Congress’ acquiescence in an agency’s interpretation of a statute because ”[n]on-action by Congress is not often a useful guide.” Bob Jones University v. United States,
. The seller argues the significance of two pieces of legislative history subsequent to 1978: (1) a 1979 House Report indicating that legislation with regard to condominium development and сonversions was not needed because of adequate state and local safeguards; and (2) a 1980 Senate Report recommending legislation with regard to conversions of rental housing into condominiums but advising that additional legislation covering new condominiums was unnecessary, again because of adequate state and local protections. The seller contends that, because this history declined to recommend a comprehensive federal disclosure and protection scheme for all condominium sales and noted the adequacy of state and local regulation, it provides evidence that Congress did not believe the ILSFDA was applicable to condominium sales. We are not persuaded for several reasons. First, this legislative history is not connected to the ILSFDA, but instead is primarily aimed at the problem of rental housing conversions. Secоnd, the history discusses the sale of existing condominiums as well as the development of new ones. Most of these transactions would be exempt from the ILSFDA, and the discussion of adequate state and local safeguards was therefore appropriate. Finally, the scope of the ILSFDA’s coverage of condominiums is very narrow, applying only when sales exceed specified numbers of lots, see supra note 8, not applying to sales that are solely intrastate, see 15 U.S.C. § 1702(b)(7) (1982), and exempting sales to persons in the land sales or construction businesses, see supra note 5. Congress’ refusal to enact a more wide-ranging federal condominium statute does not mean that it intended to cast doubt on HUD’s interpretation of the ILSFDA.
. In Bonner v. City of Prichard,
. The provisions of the ILSFDA frequently apply to the sale or lease of a lot. E.g., 15 U.S.C. § 1703(a)(1)(B) (1982). Passage of title is irrelevant as far as a leаse is concerned, again evidencing that the time of contracting is the important factor.
. HUD guidelines elaborate on the exemption at issue:
Lots Sold to Developers — The sale or lease of lots to a person who is engaged in a bona fide land sales business is exempt. For a transaction to qualify for this exemption, the purchaser must be a person who plans to subsequently sell or lease the lot(s) in the normal course of business. The term ‘business’ refers to an activity of some cоntinuity, regularity and permanency or means of livelihood. The sale or lease of lots to an individual who is buying the property for investment (to be sold at some unforeseeable time in the future) would not be exempt under this provision.
44 Fed.Reg. 24,018 (1979). Genuine issues exist as to the buyer's plans for the condominium, its investment intent, and whether it was involved in a land sales "business,” meaning a continuous, regular, permanent endeavor or a means of livelihood. The record does not contain any evidence upon which to base a finding on these matters.