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Construction Law Authority / Legislation  / SB 1196 amendment

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 cannot be disclaimed.  Similarly, declarations of covenants, conditions and restrictions disclaim these causes of actions.  No contractual causes of action will survive.  

Next, tort claims brought by a homeowner or association will be attacked under the economic loss rule. Although legitimate negligence claims should not be dismissed by application of the economic loss rule courts often do knock out these claims specifically because of the existence of contracts between the developer and purchasers.  

Last, there are no statutory warranties for homeowner’s associations under chapter 720 as there are for condominium associations under chapter 718.  The only other construction related cause of action is a private cause of action for breach of the building code under section 553.84. That will remain the only cause of action that can be brought, the breach of a bare minimum code. At the end of the day this will remain the only real claim that survives the wording of the amendment.

Further, the problems that existed in the original language remain and can be found here. I will point out again that 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 “home” is an all-encompassing term.  The fact that this provision is placed in chapter 553 instead of chapter 720 shows this broader intent.

Sanjay Kurian

Sanjay Kurian

skurian@bplegal.com

Sanjay Kurian is a Board Certified Construction Lawyer and is a member of the Firm’s Construction Law and Litigation group. He is AV Rated Preeminent by Martindale-Hubbell. He has also been selected again as a Super Lawyer in 2017, which is a recognition by his peers of the top 5% of lawyers in Florida.

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