January, 2012 | Construction Law Authority

SB 1196 (Anti-Maronda) heading to Senate Judiciary Committee

January 27, 2012

With the legislative session in full swing it appears that some legislators are pushing SB 1196 and its companion HB 1013, and are determined to wipe out common law implied warranties relating to residential construction. SB 1196 is sponsored by Senator Michael S. "Mike" Bennett (R), and HB 1013 is sponsored by Representative Frank Artiles(R). These bills are an overreaction to the recent opinion in Lakeview Reserve Homeowners v. Maronda Homes, Inc., 48 So. 3d 902 (Fla. 5th DCA 2010). As noted previously, and also here, here and here, these bills: - -Would negatively impact homeowner associations, condominiums, co-ops, timeshares and mobile home parks as the term “home” is an all-encompassing term. - -Ignores the fact that most new residential dwellings are built in planned communities - -Expose homeowners to liability to repair defective construction and design for which they have no recourse - -Homeowners who fail to pay their assessments for these repairs can have their homes foreclosed upon - -Will result in...

SB 1196 amendment

January 25, 2012

Sanjay Kurian

Legislation

As noted previously, SB 1196 (regarding common area common law implied warranties) was considered by the Community Affairs committee of the Florida Senate. The committee passed the committee substitute bill which can be read here. The next step will be consideration by the senate judiciary committee but that hearing has not yet been set. The amendment to the bill does 2 primary things. First, it removes the definition of habitability that was previously included. Given that the original definition limited habitability to situations where residents could not live free from structural defects likely to cause significant harm to the health and safety or persons, this merely removes a definition not found anywhere else in the law. Second, the amendment purports to not alter or limit causes of action which may exist in contract, tort or statute. This is completely illusory. Most, if not all, purchase contracts disclaim any and all warranties and causes of action other than statutory ones which...

Learning From Others’ Lessons, That They Learned The Hard Way.

January 23, 2012

Ryan Carpenter

Cases, Construction Defects, Litigation

If an owner fails to promptly investigate symptoms of a construction defect, the owner not only runs the risk of a small problem becoming bigger and more expensive to fix, but also runs the risk of losing his or her right to hold the responsible entities accountable. Owners, like the Hochbergs, have lost claims by failing to promptly investigate defects and timely sue the responsbile entities. Others can learn from their experiences without suffering the consequences....

Common Law Implied Warranties and SB 1196

January 19, 2012

Sanjay Kurian

Cases, Legislation

With the legislative session in full swing it appears that SB 1196 and its companion HB 1013, are being pushed to wipe out common law implied warranties relating to residential construction. These bills are reaction to the recent opinion in Lakeview Reserve Homeowners v. Maronda Homes, Inc., 48 So. 3d 902 (Fla. 5th DCA 2010). As noted previously, these bills: - - would negatively impact homeowner associations, condominiums, co-ops, timeshares and mobile home parks as the term “home” is an all-encompassing term. - - Ignores the fact that most new residential dwellings are built in planned communities - - Expose homeowners to liability to repair defective construction and design for which they have no recourse - - Homeowners who fail to pay their assessments for these repairs can have their homes foreclosed upon - - Will result in homeowners being stuck with shoddy construction with no remedy SB 1196 has been noticed for public hearing before the community affairs committee on Monday January 23, 2012, at 10am,...

What Developers and Contractors Need to Know About Destructive Testing

January 18, 2012

Michele Ammendola

Construction Defects

Chapter 558 Fla. Stats. is Florida’s pre-suit notice and right to cure procedure, which applies before property owners may assert a claim against a developer, contractor, subcontractor or design professional for construction and design defects. It expressly provides for “destructive testing” of the defective areas of the property via written request and mutual agreement. Destructive testing may be performed to refute the existence of defects. Examples of destructive testing may include such things as removing drywall, stucco, or other components to view the hidden conditions beneath it. At a minimum, a developer or contractor’s request for destructive testing should describe: (i) who is performing the testing, (ii) the anticipated testing methods and locations, (iii) the estimated anticipated damage and repairs to or restoration of the property resulting from the testing, (iv) the estimated amount of time necessary for the testing and to complete any repairs or restoration, and (v) who will bear...

ARE YOU AN ADDITIONAL INSURED – MAYBE OR MAYBE NOT?

January 11, 2012

webmaster

Insurance

Condominium associations, developers, and contractors will typically want to be named as an additional insured on casualty insurance policies of their respective contractors and subcontractors performing work on a construction project. One of the main advantages of being an additional insured is the existence of insurance to potentially cover certain casualty losses that may arise from the construction process. But, how does one truly know if they are an additional insured? Ideally, the insurance policy should have an endorsement that specifies who is an additional insured and that insured’s coverage. In this context, the policy should be examined to verify the nature and extent of coverage, including the policy period(s), any qualifications, limitations or other conditions that may affect an additional insured’s status and available coverage. At times, an additional insured will receive what is commonly referred to as an Acord Certificate of Insurance. This document generally summarizes a policyholder’s insurance coverage and...

Bid Protest Filing Deadlines Are Strict, Unless….

January 6, 2012

Mark J. Stempler

Contracts, Procurement

The general rule is that bid protests must be timely filed in order to be considered. Most government agencies in Florida have specific deadlines for which a bid protest must be filed. These deadlines are expressed in terms of days, or even hours, and may specify the exact method that the protest or notice of protest must be submitted to be considered timely filed. A Protest filed after the deadline is usually considered a waiver of the protestor’s rights. There are, however, scenarios where a protest technically filed after the deadline may still be considered. This is exemplified in the recent case Pro Tech Monitoring, Inc. v. State Department of Corrections. There, a protesting bidder was supposed to hand-deliver its formal bid protest petition to the clerk by a certain date. The agency’s clerk, however, did not stamp the petition in until the next day, and the agency determined the protest was untimely. However, the protestor had tried...

New Year Brings Potential CCNA Change

January 5, 2012

William J. Cea

Legislation, Procurement

Florida Statutes, Section 287.055, known as the Consultants' Competitive Negotiation Act ("CCNA"), provides a framework for the public procurement of professional services. Professional services are defined to include those services "within the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping". The CCNA provides that the price of the service is not a factor in the evaluation and ranking of the firms. Price may only be considered as part of the negotiation phase. Further, an agency is limited to negotiating price with one firm at a time. In other words, the only pricing that is received is from the top ranked firm, and pricing from the second ranked firm is not received unless negotiations with the first firm are formally terminated. There is a Bill pending in the Florida Legislature that would modify the above process. Specifically, Senate Bill No. 246 provides for proposed amendments to the CCNA, including...

New Year Brings Potential CCNA Change

January 5, 2012

William J. Cea

Legislation, Procurement

Construction Owners Trade Association Takes Note of Public/Private Partnerships

January 5, 2012

Lee Weintraub

Public Construction

Construction Owners Assn of America is presenting workshop on public/private partnerships...