Florida Community Association Construction Law Blog : Sarasota Construction Lawyer & Attorney : Levin Tannenbaum Law Firm : Florida, Tampa Bay

 Some of these potential clients have chosen to retain other law firms, some of whom surprisingly represent contractors in the normal course of their practice, on the prospect that the issues be addressed through a class action. I personally do not see these issues appropriate for a class action because, among other reasons, several different builders and manufacturers are involved and each case is factually distinct (whether it is an isolated case or an entire block of owners involved, where the bad drywall is in each home, health impact, etc.). This does not mean that there would not be benefit to the affected owners working together, I just don't see this as appropriate for class action treatment.

One other more practical issue if indeed a builder like Lennar is the target of a class action on this issue is whether such a pursuit will be the straw that broke the camel's back as far as Lennar surviving the current economic downturn. If you have a builder prepared to step up and make things right, forcing them to spend millions of dollars in defense costs may lead to bankruptcy and nobody being satisfied.

Of course, Lennar, like any builder, should not be given free reign on its approach to the remedial work. As a Board-Certified Construction Lawyer who has represented consumers for 30 years, these are issues that should be addressed with every builder involved: 

• 1. that all affected residents and tenants are cleared health wise; 
• 2. that all the bad drywall is in fact removed from each house.  Remember that many houses have this stuff mixed with other brands;
• 3. that the drywall is properly disposed of;
• 4. that all exposed copper in the air-conditioning systems and electrical outlets is inspected and replaced where deteriorated;
• 5. that the reinstallation of electrical and air-conditioning components is completed by licensed trades under proper permit and inspection;
• 6. that new drywall is hung by qualified people under proper permit and inspection;
• 7. that all finishes are properly reapplied by qualified people;
• 8. that home warranties are extended
• 9. that homeowners are compensated for alternative housing and lost
  rental (in the case of tenants).

HOMEOWNERS AND CONDOMINIUM ASSOCIATIONS

A homeowners' or condominium association, after control of such association is obtained by homeowners or unit owners other than the developer, may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all association members concerning matters of common interest to the members, including, but not limited to: (1) the common property, area, or elements; (2) the roof or structural components of a building, or other improvements (in the case of homeowners. associations, being specifically limited to those improvements for which the association is responsible); (3) mechanical, electrical, or plumbing elements serving a property or an improvement or building (in the case of homeowners. associations, being specifically limited to those elements for which the association is responsible); (4) representations of the developer pertaining to any existing or proposed commonly used facility; (5) protests of ad valorem taxes on commonly used facilities; and, in the case of homeowners' associations, (6) defense of actions in eminent domain or prosecution of inverse condemnation actions. If an association has the authority to maintain a class action under this rule, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action under this rule. Nothing herein limits any statutory or common law right of any individual homeowner or unit owner, or class of such owners, to bring any action that may otherwise be available. An action under this rule shall not be subject to the requirements of rule 1.220.

Unfortunately, what the Florida Supreme Court did in providing automatic class action standing for homeowner associations was not coupled with the Florida Legislature, as it had done long ago for condominium associations (F.S. 718.203), inserting developer and contractor warranties of fitness and merchantability into F.S. Chapter 720 (homeowner associations). As a result, even though the procedure to get into court as a class has been made significantly easier for member of homeowner associations, identifying sustainable causes of action for securing compensation remains a challenge.