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Construction Law Authority / Articles posted by Sanjay Kurian (Page 3)

Orlando Sentinel Editorial Opposes HB 1013

The Orlando Sentinel Editorial page of April 4, 2012, has come out in opposition to HB 1013, the anti-common law implied warranty legislation.  The editorial is reprinted in part below. To view the full editorial please follow the link.  Do not forget to contact the Governor's office to veto this legislation.  Editorial Below- When a leaking underground drainage system pitted roads and driveways and created sinkholes in lawns at aWinter Garden subdivision, homeowners sued the developer to cover the damage and repair costs. After conflicting rulings in lower courts, the case reached the Florida Supreme Court, which heard arguments on it in December. But before the justices had issued a ruling, the Florida Legislature stepped in like Judge Judy and moved to decide the case — and any future ones like it — in favor of the developer. Lawmakers often carp about being pre-empted or overruled by "activist judges." But in this case, lawmakers trumped the judges. Lobbied...

Ask the Governor to veto HB 1013(SB 1196)

The Governor's office has received numerous calls and emails in opposition to HB 1013, the anti-implied warranty legislation.  We are asking that you continue to urge Governor Scott to veto HB 1013.  It is the only way to prevent this bill from becoming law.  The bill has not yet been sent to the Governor for consideration, but we expect it to be sent very soon.  Therefore, please contact Governor Scott as soon as possible so that your voice can be heard. You can e-mail Governor Scott at Rick.Scott@eog.myflorida.com and copy his Legislative Affairs Director, Jon Costello, at Jon.Costello@eog.myflorida.com.  You can copy and paste the following suggested text in your message to the Governor:  Please veto HB 1013, which eliminates common law implied warranties in common areas of all communities in the state.  This legislation will result in greater costs for Florida’s homeowners, in the form of repairing shoddy construction, and ultimately lead to more foreclosures.  This...

Letter to Governor Scott re: HB 1013/SB 1196

Below is the text of a letter sent today by Alan Becker, Esq., a founding shareholder of the Becker & Poliakoff, asking Governor Scott to veto HB 1013 which wiped out common law implied warranties for common area property.  We are requesting that you join us and ask Governor Scott to veto this legislation. Dear Governor Scott: I am writing to you with regard to the recently passed HB 1013 (companion SB 1196, “the legislation”) which eliminates common law implied warranties as it pertains to common areas of all communities in the state and asking that you veto this legislation. I was a member of the legislature when what is now section 718.203, providing statutory implied warranties for condominiums, was enacted and am a founding member of Becker & Poliakoff, P.A. which represents close to 4,000 community associations in the state of Florida. With that background, I can state that this legislation is absolutely harmful to consumers, will result in...

SB 1196 Passes

Unfortunately SB 1196 passed the Senate yesterday. The next step for the bill will be the governor's desk. The only way the bill does not become law at this point is if the governor vetoes it. If he signs it or merely does nothing the bill becomes law and will take effect, by its terms, on July 1, 2012. The negative impact of this legislation will be substantial for Florida homeowner's. However, it is fairly certain that there will be challenges to the legislation. How effective the challenges will be remains to be seen. What impact, if any, the legislation has on the Maronda case pending before the Florida Supreme Court will also be interesting....

SB 1196 moving forward

As noted previously, there are a couple of bills (HB 1013 and SB 1196) pending before the Florida legislature involving HOA warranties which would be devastating for HOAs with common area defects. These bills prohibit implied warranties of fitness and merchantability from applying to streets, roads, sidewalks, drainage areas, utilities, or any other improvements that are not located on or under the lot on which a new home is constructed. In short, the bills will result in homeowners being stuck with shoddy common areas for which they have no recourse. The House version of the bill (HB 1013) has already passed the House of Representatives. The Senate version (SB 1196) had been “stuck” in the Budget Committee. If SB 1196 had remained in Budget, it would have died in committee. However, yesterday SB 1196 was removed from Budget and could be heard by the full Senate this week. Therefore, its VERY IMPORTANT that...

Myths about Common Law Implied Warranties and the effect of the anti-Maronda Legislation

  On Tuesday I had the pleasure of being in Tallahassee and testifying at the House Civil Justice Subcommittee meeting against HB 1013 (the House equivalent of SB 1196). The Senate Judiciary Committee meeting scheduled for that afternoon was canceled and has been rolled over to next week.  Although my opinion on this legislation can be found here, here, here, here and here, I was interested in hearing the remarks of the Bill's sponsor and others in support of the bill.  After hearing those comments and having subsequent discussions with individuals supporting the bill it became clear to me that there existed several myths about common law implied warranties and the need for legislative action which needed to be addressed. Myth 1: The legislature must act immediately. This push by certain legislators to pass this bill by the end of this session ignores that the Supreme Court heard oral argument on the Lakeview case in the first week of December.  The issue...

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

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

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...

Common Law Implied Warranties and SB 1196

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,...

Common Law Implied Warranties and Strict Liability

As the new year begins, and the legislative session draws near, the issue of common law implied warranties and the recent opinion in Lakeview Reserve Homeowners v. Maronda Homes, Inc., 48 So. 3d 902 (Fla. 5th DCA 2010), remain on the legislative agenda. Concerns are being raised as to whether Maronda creates a cause of action for “strict liability” against developers with regard to construction defect claims for improvements to subdivision common areas. For the reasons below it is my opinion that it does not and that my prior analysis as to why SB 1196 is a bad bill for homeowners remains accurate.    Under the existing case law, an implied warranty of fitness and merchantability: - extends to the purchase of new homes, Gable v. Silver, 258 So. 2d 11 (Fla. 4th DCA 1972);  - means that a home will be constructed in accordance with the specifications contained in the building plans filed with and approved by...