Lakeview | 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...

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,...

Common Law Implied Warranties and Strict Liability

January 4, 2012

Sanjay Kurian

Cases, Legislation

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...

Legislative Proposal Could Wipe Out Common Area Warranties

December 14, 2011

Sanjay Kurian

Legislation

Reacting to the Fifth District Court of Appeal's decision in Lakeview Reserve Homeowners v. Maronda Homes, 48 So. 3d 902 (Fla. 5th DCA 2010), discussed here, the legislature may consider a bill next year to 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. Senate Bill 1196 is the legislative bill that was proposed and can be found here. The Lakeview case was appealed to the Florida Supreme Court and the oral argument was made just last week but the legislature may be moving forward without waiting for the court to rule. The bill is a bad deal for homeowner's for a number of reasons. First, the proposed statute is not limited to Chapter 720 homeowner’s associations. As worded the limitations would negatively impact homeowner associations, condominiums, co-ops, timeshares and mobile home parks as the term...

Supreme Court accepts review of Lakeview Reserve v. Maronda Homes

May 14, 2011

Sanjay Kurian

Cases

In the recent case of Lakeview Reserve Homeowners v. Maronda Homes, 48 So. 3d 902 (Fla. 5th DCA 2010), Florida's 5th District Court of Appeal found that a homeowner's association had a claim for breach of common law implied warranties of fitness and merchantability against a builder/developer for defects in the roadways, drainage systems, retention ponds and underground pipes. The Fifth District found that these items immediately supported the homes by making them "habitable, and so, fit for its intended purpose." In reaching this decision, the Fifth District certified conflict with the Fourth District's 1985 opinion of Port Sewall Harbor & Tennis Club Owners, Association, Inc. v. First Federal Savings and Loan Association of Martin County, 463 So. 2d 530 (Fla. 4th DCA 1985). The Port Sewall case relied on the Florida Supreme Court's prior decision in Conklin v. Hurley, 428 So. 2d 654 (Fla. 1983), which the Fifth District distinguished. In light of the conflict between the appellate districts, the Florida Supreme Court has...