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

Drywall dilemma deep for parents GO OR STAY?

For homeowners dealing with Chinese-made drywall, the concerns grow more urgent with the arrival of a new child

By Aaron Kessler

Having a baby -- especially when it is a first child -- is enough of a challenge for most new parents. Now, a growing number are contending with an unexpected worry: Chinese drywall.

In Florida and other states, more homes are found each day that were built with Chinese-made drywall -- a material that is emitting corrosive and potentially hazardous gases. As state and federal inquiries drag on, leaving fundamental health questions unanswered, a new generation of babies are being born into a situation that leaves their parents in a dilemma.

"I just want a house I can live in," said Neil DeHenes, whose wife just gave birth to their first child, Sophie, in May. "My main concern is my daughter. Her respiratory system is just developing now. Her brain is developing. If it's causing me to get headaches and very painful sinus infections when I breathe it in, what is it doing to her?"

DeHenes and his wife left their Chinese drywall home in Riverview at their own expense just days before Sophie was born. Their builder, Tampa-based Suarez Housing Corp., has taken little action since the drywall was found in April. Now the DeHeneses have been forced to return temporarily after losing a short-term rental and are scrambling to find another furnished place to live.

"We just can't risk staying here any longer than absolutely necessary," Neil DeHenes said. "Even when we find something, I don't know how much longer we can continue to pay rent and the mortgage at the same time. We're already dipping into what's left of our savings."

No one from Suarez Homes would agree to discuss the company's use of Chinese drywall or the DeHeneses' case with the Herald-Tribune. Lisa Hower, an employee at Suarez's South Fork sales office -- visible from the DeHeneses' home -- directed questions to the corporate headquarters in Tampa. Multiple phone messages there were not returned.

In early April, Neil DeHenes was daydreaming about the adventures his first child would bring. That is when his home's air-conditioner failed. A technician determined that the copper coils were damaged. "The guy said, 'It looks like the effects of Chinese drywall,'" DeHenes said.

He contacted Suarez, but said the builder disagreed, claiming it used only American-made brands. "They said the copper in the A/C unit was from Mexico, that it was bad," DeHenes said.

Skeptical, DeHenes climbed into the attic to see if there were any markings on the exposed drywall. The stamps read, "Made in China."

Suarez then sent out an executive and other workers. They cut out drywall samples, but DeHenes later learned that Suarez had not tested the samples and would not pay to move him out.

DeHenes hired an attorney, who began sending letters to Suarez demanding action. In the meantime, the couple moved out on their own to a furnished town house in nearby Brandon.

DeHenes has had painful sinus infections for more than a year, but a series of expensive medical tests were inconclusive. His doctors previously wondered if his frequent airplane travel could be to blame. They now believe it is likely the drywall.

"If it was doing that to me, I can't take a chance on what it's doing to my daughter," he said.

Suarez has since indicated a willingness to make repairs, but executives have yet to say what exactly the company will do. The builder also wants DeHenes to sign a comprehensive waiver agreement absolving the builder of any legal liability.

Meanwhile, about 30 miles to the south, in the Lighthouse Cove neighborhood of Lennar Corp.'s Heritage Harbour development in Manatee County, another group of babies have begun moving back into homes originally built with Chinese drywall.

The wallboard has been removed from several dozen homes by the Miami-based company, one of a few builders to do so.

Lennar says the houses are now free of harmful gases, but some owners remain nervous.

Adding to that anxiety is Lennar's change of course regarding air quality tests. Multiple owners interviewed by the Herald-Tribune said Lennar promised to conduct tests before they moved back in, and then more several months later. Those tests have since been canceled.

"One of the big things was we wanted something saying everything was good and safe. We were hoping to get the air quality tests back, but when the time came we didn't get that," said Pio Rizzo, who along with his wife and their new baby recently moved back into their home on Montauk Point Crossing. "I hope it'll be OK, but there's still some worry about bringing my family back in and having a newborn here."

Rizzo considered refusing to move back in unless the tests were done, but ultimately concluded that it would only inflame the situation. He has not experienced the headaches or nosebleeds prevalent before.

Others who recently returned or who will do so soon were divided on the subject of the canceled tests. Several said they were disappointed, but did not want to rock the boat.

Others said they are happy.

"It's not an issue for me at all. I'm glad to be back in what is essentially a new house," said Carlos Cabrera, who recently moved back with his wife and 1-year-old.

Lennar said the tests were canceled after subsequent studies by its environmental consultant, Environ Corp.

Darin McMurray, Lennar's Southwest division president, said through a spokesman that Environ reached a conclusion that "no additional air quality testing is necessary once the defective drywall has been completely removed." The new policy applies to all Lennar homes statewide. McMurray said a one-year warranty Lennar has offered should provide enough assurance to owners.

The company said it has stopped telling affected owners they would receive the post-construction tests, but no exceptions have been made for those previously told otherwise.

Air quality testing can be difficult and yield inconsistent results. Environ's own tests have been criticized by state and federal health officials. Its report made public earlier this year, which concluded there was no health risk associated with drywall gases, resulted in data that Florida's state toxicologist, Dr. David Krause, called "inadequate," prompting the state to push for more expansive testing.

Meanwhile, owners like Neil DeHenes, with the Suarez home in Riverview, would be glad to see his builder deal with the problem.

"I really don't know what to do anymore," he said. "This wasn't how I pictured we'd be having our first baby."

Program Sponsor

Alderman & Price Associates, CPA’s

Progressive Management

Habitat for Humanity Sponsors

Bay Area Disaster Kleenup

___________________________________________________________

Breakfast Registration                                               February 12, 2009

CAI Member? Yes _____ No _____ Late Registration_____

Company:_____________________________________________________________________

Name(s): _____________________                                                                                           

Phone:                                                              Number people to attend: _________________

Amount Enclosed:                                

Reservations MUST be in writing. This is your invoice.

 You may fax your reservation to (727) 345-0170 or email lhagan@suncoastcai.com.

Mail payment to:

CAI – Suncoast, 5701 – 1st Avenue South, Suite A, St. Petersburg, Florida 33707       

Please make check payable to CAI Suncoast – NO Credit Cards Accepted

Phone: 727-345-0165  Fax: 727-345-0170

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.

The owner is forced (absent the architect's agreement) to file separate arbitrations against the general contractor and architect. The general contractor in the one arbitration can attempt to deflect responsibility by blaming the design. The architect in the other arbitration can attempt to deflect responsibility by blaming the construction. Not only is this a very expensive proposition, but the worse case scenario is that both arbitration panels buy the defense arguments, with one walking the general contractor while pinning the blame on the design while the other walks the architect pinning the blame on the general contractor.

Word to the wise, if you use both the AIA owner/architect and owner/general contractor forms, insert provisions in each providing for a joint arbitration of all disputes involving both the design and construction teams. This should include sub-designers (engineers) and subcontractors. Better yet, consider scrapping the arbitration clauses entirely. . . More on this in upcoming blogs.

If your condominium was converted prior to the enactment of amendments to F.S. 718.618 in 2007, assuming your developer opted for extending warranties or chose instead to fund reserves but failed adequately fund them, a statutory warranty extended to the unit owners but covered solely the roof and structural components, fireproofing and fire protection systems and mechanical, electrical and plumbing systems (except those serving only one unit). Although there is a continuing debate as to the scope of the term "structural," arguably the warranty did not cover the exterior building facade (i.e. walls and windows), paving and drainage features and exterior amenities (tennis courts).

For condominiums converted after the 2007 amendments to F.S. 718.618, assuming the choice by the developer not to fund reserves or the failure of the developer to fund adequate reserves, the developer statutory warranty now covers all improvements and building systems.