Outrageously One-Sided Construction Defect Litigation Proposal in Florida

guest blog by Deborah Goonan

As we gear up for the Legislative session in Tallahassee, beginning March 3, we are starting to hear the buzz about HOA-related bill proposals.

Florida HB 78, a proposed amendment to Statute 558, is among one of the most preposterous bills I have seen. Written by and for the benefit of general contractors and design professionals, the amended version seeks to substantially reduce their liability for construction defects.

As currently written, the bill proposes that owners and Associations meet difficult and costly legal standards prior to filing the initial claim. For instance, the claimant would have to provide a complete and detailed list of each instance of every defect and cite the specific code(s) violated, plus reference all pertinent spec sheets and project drawings, among other details. Essentially, the contractors are insisting that owners or Associations undertake the discovery process prior to filing the first defect claim.

Let’s say your condo building or HOA clubhouse has numerous water leaks. It would be up to your Association to hire the necessary experts to figure out the cause or causes of each and every leak, even if that means removing drywall to get to the plumbing, or removing earth from the foundation wall to look for cracks in the concrete slab. It means your HOA would have to hire an attorney to locate all of those pertinent documents that may have gone missing during the transition process. Then the attorney would have to work with experts to complete detailed reports to attach to the initial claim.

Thousands of dollars in legal costs can accumulate before the Contractor will even consider confidential settlement talks with the HOA or owners. Of course those settlements have to be confidential, so that future buyers will never know what kind of a time bomb they intend to purchase.

And if it turns out that the owners miss some hidden defects, too bad! If a judge decides that the Association is to blame for insufficient maintenance, then the HOA would be on the hook for all of the Contractors’ investigative and legal expenses! But if the Contractor turns out to be 100% to blame for shoddy construction, there is no equivalent sanction requiring that all of the HOA’s legal costs will be reimbursed. I have included a link to a Florida attorney’s blog and the bill itself below, for any skeptics among you who might think I am exaggerating.

This is the kind of legislation that, if enacted, will ensure full employment for construction defect attorneys all over the state of Florida, or alternatively, extort owners to simply pay dearly for all of the mistakes made – and corners cut – during construction.

(link to Florida HOA Lawyer Blog critique of HB 87)

(Florida HB 87 as filed)

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Ward Lucas is a longtime investigative journalist and television news anchor. He has won more than 70 national and regional awards for Excellence in Journalism, Creative Writing and community involvement. His new book, "Neighbors At War: the Creepy Case Against Your Homeowners Association," is now available for purchase. In it, he discusses the American homeowners association movement, from its racist origins, to its transformation into a lucrative money machine for the nation's legal industry. From scams to outright violence to foreclosures and neighborhood collapses across the country, the reader will find this book enormously compelling and a necessary read for every homeowner. Knowledge is self-defense. No homeowner contemplating life in an HOA should neglect reading this book. No HOA board officer should overlook this examination of the pitfalls in HOA management. And no lawyer representing either side in an HOA dispute should gloss over what homeowners are saying or believing about the lawsuit industry.

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