Finally...Automatic Class Action Standing for Florida Homeowner Associations
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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:
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.
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.