by Alan E. Tannenbaum and Salvatore Scro as co-authors with Felix Martin, PE

In the marketplace today there are many people who call themselves "construction experts." Some of them are highly experienced and knowledgeable, while some are little more than talking heads with little substantive expertise. How is one to know who truly is an expert and who is not?

First consideration should be given to the matter of qualifications. What is the expert's education and experience? Does the expert have a resume available for review? How long has he/she been an expert? Does the expert have repeat clients, recommendations? Does the expert have demonstrable experience in the area he/she will be retained to investigate?

1.      Could the expert have a conflict of interest? If an expert's firm performs a substantial percentage of work for a type of clients, it's possible that their views may be influenced to the benefit of that group of clients. A firm who works mostly for large developers should be carefully considered if your potential claim will be against large developers.

2.      Is your expert able to explain complex issues in a succinct and readily understandable manner? There is nothing worse than an expert so enamored of his/her expertise that no one else can understand what he/she is saying. Or one so lacking in expertise that he/she cannot explain the issues in an easy-to-understand manner. If you have a hard time understanding an expert, so will a jury of your peers.

3.      Does the expert follow an objective analysis, with replicable results, verifiable by others? Experts who make claims based solely on non-standard, non-replicable test methods are not following a scientific method and any results thus obtained will always be subject to question. Beware of the expert who is loath to share his/her methodology or data.

4.      Are all the claims made by you're the expert supported by building code sections, product specifications or published standards? An "expert" who cannot present claims backed by published regulations is only an expert in his/her own mind.

5.      Finally, is the expert capable of acting impartially, and not as an advocate of your emotions? This is always a tough one, because we want the expert to be our advocate, to fight our battles. But an expert who is not independent, who fails to act impartially and who acts solely as an advocate for the client's emotionally charged opinions will only do his/her client a disservice, because he/she will not be able to approach the problems objectively. The client needs to know that there is always a possibility that not all of an expert's findings may be beneficial to the client, and the client must be ready to support the expert and his/her objectivity. Clients should not retain an expert as a mouthpiece for one's own grievances, clients should retain an expert to provide an honest and unbiased opinion.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

HIRING TWO LAW FIRMS

Every condominium association should have a general counsel under retainer to advise on day-to-day operations and ongoing legal issues.  During the transition period, general counsel can be of great assistance to a new Board in getting acclimated to the varied requirements:

‚    Documents

‚    State Statutes

‚    State Administrative Rules & Regulations

‚    Common Law (court-created law) Governing Condominium Operations

The transition period is also the time for the construction quality of the building and improvements to be evaluated and for Association financial operation during the period of developer control to be scrutinized.  The type of law firm best suited to assist in the evaluation and to negotiate a resolution of possible claims is a trial firm experienced in negotiating and litigating condominium construction and accounting claims.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

U.S. agency sets drywall inquiry

Sarasota Lawyer Questions Drywall Safety and Process to Replace

Investigators to determine if Chinese material poses safety risk  by  AARON KESSLER, Staff Writer:  comments by Alan E. Tannenbaum

Federal investigators with the Consumer Product Safety Commission are now on the ground in Florida, the first step in a more intense probe into contaminated Chinese drywall.

The commission has been in discussions since January with officials in Florida, as well as the U.S. Environmental Protection Agency. But the launch of a formal compliance investigation now brings the full power of the federal government to bear on the problem for the first time.

"We are stepping up the analysis to more comprehensively look into this," said Joe Martyak, a commission spokesman. "The important thing now is to get the facts."

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

"A lot of the builders involved have been reluctant to do anything at all, with the exception of Lennar," Chaikin said. "They have just said, 'We're studying the issue and will let you know,' or they simply say nothing. If the builders won't cooperate we have recourse against them."

Besides Lennar, other builders that used Chinese drywall include Taylor Morrison, WCI, Meritage, Ryland, Standard Pacific, and Aubuchon, Chaikin said.

Lee County's Aubuchon Homes -- owned by State Rep. Gary Aubuchon, R-Cape Coral -- used Chinese drywall in the North Fort Myers house of Florida Lt. Gov. Jeff Kottkamp.

But not everyone is convinced class action is the way to go, including Sarasota attorney Alan Tannenbaum, who specializes in construction law.

"It puts everybody in a defensive posture, and you could be talking about a multi-year battle now, where, in the end, the individual owner might not really get that much compensation," he said. "The question should be, how do I ensure I get my house fixed correctly?"

A single homeowner trying to take on a builder alone also stands little chance of making progress, but there are other choices, Tannenbaum said. One of the best things homeowners can do is involve their lenders, who have a strong financial incentive to get the situation resolved, he said.

"Once you get your lender on board, and as a group when the neighborhood gets all of its lenders involved, suddenly the owners have more power," Tannenbaum said. "Most builders cannot do business without the banks, and therefore when the lenders talk, they listen."

Lenders also can defer mortgage payments, which can solve the most immediate problem facing some Chinese drywall victims: getting out of a defective home.

"They're desperate, because the smell is awful, they're maybe feeling sick all the time, the house is corroding," Tannenbaum said. "If they could afford to, they would be out of there in a second. But they can't afford to pay their mortgage and then rent."  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Sarasota Herald Tribune, 1-27-2009  "Dispute Is Over Coast Verdict":  Alan Tannenbaum defending the rights of victims of financial fraud (article posted by Tricia M. Foster)

As part of the plea deal, the government agreed that Coast Bank, not the borrowers, was the single victim of the crime.

But Sarasota attorney Alan Tannenbaum, who represents more than 140 Coast loan customers, convinced the 11th U.S. Circuit Court of Appeals in December that the borrowers were victims under the federal Crime Victims Rights Act.

Federal prosecutors have filed a motion for a rehearing with the Atlanta court of appeals on the grounds that it had improperly characterized the borrowers as victims.

"The filing is notable if for no other reason than that it is the first time nationwide that federal prosecutors have joined forces with a criminal defendant to ask an appellate court to rehear a case in order to take away legally recognized rights of victims," Tannenbaum said Monday. "It is very inconvenient for the government to have victims of a crime at the table with the defendant."

www.flcommunityassociationlaw.com/uploads/file/00172774.pdf

www.heraldtribune.com/article/20090127/ARTICLE/901270335/2055/NEWS

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Community Associations Institute - Suncoast Chapter:  Come have breakfast while CAI provides you updated information valuable to every board member and every unit/homeowner as an aid in providing the best management of your association.

“Almost” Free Legal Advice

Speakers:   Alan Tannenbaum, Esq. – Levin Tannenbaum

                 Michael Brudny, Esq. - Brudny & Rabin, P.A.

                 Jonathan Damonte, Esq. – Jonathan James Damonte, Chartered  

                 Anne Hathorne, Esq. – Becker & Poliakoff, P.A.       

Where:     Holiday Inn Select **NEW LOCATION**

                    3535 Ulmerton Road, Clearwater                        

When:      Thursday, February 12, 2009                

                   Breakfast 8:30 AM, Program 9:00 AM

 Cost:         $15.00 each CAI Member/$20.00 each non-member 

Please RSVP by Monday, February 9, 2009.   

Payment in advance is appreciated – No shows will be billed.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Until 2008, Florida condominium associations had a distinct advantage over Florida homeowner associations as far as pursuing construction defect and financial claims on a class action basis. Basically, Florida condominium associations by court rule since 1977 had automatic standing to represent their owners as a class on matters of common interest. Florida homeowner associations, on the other hand, had no standing to represent their members as a class. Members of homeowner associations were relegated to bringing a traditional class action with individual members acting as class representatives on behalf of the members. The procedure for attaining class action status in a homeowner association context was cumbersome and time consuming.

The newly adopted Florida Rule of Civil Procedure 1.221 reads:

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Florida community associations are big businesses, with annual budgets for larger projects running into the tens of millions of dollars. At its inception to the point of transition to owner control (which usually is at least a couple of years), each association is operated by a board of directors appointed by the developer. During this "pre-transition" period, these developer-appointed directors are running the business of the association (collecting revenue, expending money, contracting for services, performing maintenance, establishing or waiving reserves, etc.). From the point each new owner closes on their unit or parcel, each is a shareholder and contributing member in the association.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Unit owners in Florida condominiums converted from preexisting apartment buildings have inferior rights and remedies to recover for construction defects as compared to the rights and remedies available to unit owners in new Florida condominiums. Unit owners in new condominiums have statutory warranty protection under F.S. 718.203 which extends from the developer, general contractor, subcontractor and suppliers and covers to some extent all improvements and systems interior and exterior.

With condominium conversions, there are no statutory warranties extending from the general contractor, subcontractor or suppliers. The developer can opt out of statutory warranties if the developer adequately funds converter reserves per F.S. 718.618. If the developer chooses not to fund reserves or does not fund adequate reserves, a statutory warranty from the converter developer per F.S. 781.618 does extend to the unit owners, however, until recently, it did not cover all improvements.

• Email This
• Print
• Comments
• Trackbacks
• Share Link