Jon is a partner at Tannenbaum Scro.  He has a passion for standing by building and homeowners, community associations and municipalities facing disputes with developers, contractors, and design consultants.  He also spends considerable time assisting and advising project owners in negotiating favorable and effective contracts for major capital improvement and repair/maintenance projects.

My Building Might Be Defective – What’s Next?

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 Controlling The Compensation Game With Three Decisive Plays

We are fortunate to live in a world where our vehicles are equipped with a "check engine" light to alert us to impending problems with our cars. Wouldn't it be wonderful if buildings came with the same type of warning system? Unfortunately, the first hint of a design or construction flaw in our buildings might only happen when it's too late. Water intrusion, stucco cracking, roof leaks - to name just a few – are most often the outward signs of more sinister latent design or construction defects that can spell significant economic hardship to come. Facing such conditions, a smart building owner or community association board will act decisively to control the risks of spiraling repair costs or crippling special assessments. In the spirit of March Madness, here are the three most critical moves a smart building owner or community association can make to win the game of securing compensation from the responsible parties.

1) Manage the Game-Clock (The Statute of Repose)

Many a building owner or community association has been stuck paying for the sins of an architect or general contractor simply due to poor time management. Florida gives building designers and contractors an absolute bye for their defective work after ten years. You may have a slam-dunk claim for design/construction/repair defects, but if you don't start a lawsuit within ten years, it's game over. And, by "starting a lawsuit" our courts mean the actual filing of a complaint in Circuit Court. If you suspect that there are design, construction, or repair flaws with your community's buildings, you should immediately consult an experienced construction defect lawyer. An early start to negotiating with the responsible parties may save you from a late-game scramble to file a costly lawsuit in order to protect your claim.

2) Manage the Shot-Clock (The Statute of Limitations)

Sometimes you may have plenty of time left on the game clock, but Florida law also imposes a second deadline on claims against a design professional or contractor. You must commence a lawsuit for construction defects within four years from the discovery of the defect. If your building is leaking, or if stucco is debonding from the exterior, don't let time significant time pass without investigating the causes of these conditions. Between hiring claims counsel, securing the right engineering studies, gaining necessary membership approvals, four years from discovering building leaks or stucco problems can pass at the speed of a late-game fast-break.Therefore, at the first sign of a defective design or construction condition, seek the advice of experienced construction defect counsel to begin preparing for the possibility that the only way to get the responsible parties to pay up is through litigation.

3) Get Your A-Team On the Court

Winning the game against large and well-funded design and contracting firms requires a team of game-tested veterans. Putting the wrong lawyers, engineers and other experts on the court is like putting a squad of rookies up against LeBron's Lakers. At the first sign of possible defects in your buildings, you should consult a law firm that concentrates on representing building owners in construction defects claims, and who can recruit the right team of supporting players. Securing compensation from architects and general contractors is a highly specialized undertaking. It typically requires engaging forensic building engineers who are not just good at engineering, but who can also handle themselves under intense questioning from highly-paid construction industry lawyers – that's a very niche skillset indeed, but one which will go far in helping your side control the flow of the game right from the first whistle.

In conclusion, at the first sign of building defects, you have a critical choice of plays. Act decisively to control the game and secure compensation for what may be very costly repairs. Or let the game control you and end up eating large and unexpected repair costs. Follow these three, crucial, early-game strategies and you'll give yourself or your community the best chance to avoid paying for the mistakes of your building's designers, builders, and repair contractors.

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Turnover? Why you need to hire an experienced construction lawyer right away!

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"Turnover" may be the most important event in the life of a condominium or homeowner association.Turnover transfers association governance from the developer to directors who are answerable solely to members and their wallets.Newly-minted owner-directors must manage millions of dollars of infrastructure such as roads, drainage systems, ponds, lift stations, and pools.For multi-family buildings, this can also include building roofs, stucco, paint, waterproofing and balconies.Florida law imposes a fiduciary duty on these volunteer directors to make well-conceived, long-term plans for maintaining and replacing these assets.The critical nature of this planning suggests that every post-turnover board consider hiring an experienced construction claims lawyer to assist in guiding the association through a successful completion of the turnover process.Let's explore 3 reasons why this is so.

1. The developer wants to walk away scot-free.

At turnover most developers want to resolve any lingering, obvious construction quality disputes with a cash settlement and a general release of all future construction-related claims.Working in tandem with the right forensic engineers, a construction attorney can assess whether there are any non-obvious, latent construction defects impacting the useful lifespan of major common elements.By foregoing this critical guidance the board may financially short-change its members, setting them up for large, unanticipated maintenance, repair and/or replacement assessments in the future.Don't fall victim to releasing a developer, only to later discover hidden construction defects requiring a surprise assessment.

2. The clock is ticking

Florida community associations have just ten years from completion to discover hidden construction defects and to sue the developer for compensation.In our experience the worst construction defects are rarely obvious.Hidden defects in roads, drainage systems, roofs, building envelopes, foundations and the like are rarely discovered without the right types of forensic investigation.An experienced construction defects lawyer knows what types of investigations to recommend in order to discover ticking time-bombs which may not go off until after the developer's immunity kicks in.

3. Statutory Warranties for Condominiums

Florida condominiums get an added benefit of extremely valuable, but limited-duration, warranties from their developers.Warranty claims are particularly impactful because the association need only prove that the covered element was defective within the warranty period.This is another example where an experienced construction attorney can assist in guiding forensic engineering investigations for maximum impact.Defects discovered outside the warranty period are often less valuable litigation claims against a developer than those discovered during the warranty period.Don't give the developer another free pass by ignoring the compelling compensation value of latent defects discovered while the developer's warranties are in existence.

To conclude, post-turnover, volunteer board members carry a heavy burden to be good stewards of their community's infrastructure, avoiding the surprise of unexpected repair or replacement needs.An experienced construction defects lawyer is crucial in guiding a new board through a complete investigation of its potential claims against the developer, ensuring that the developer – and not the association - bears full financial responsibility for the developer's defective work. 

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COVID-19 and Condo Unit Entry – The Intersection of Exposure Risk and Protection of Association Property

These days Floridians find themselves sprinting towards hurricane season with the unfamiliar specter of a global pandemic still nipping at their heels. For condominium unit owners still practicing vigilant self-distancing, an association's need to enter into their unit may seem like a giant "not happening!" But is it? What are an association's duties and powers when it comes to entry into a condominium unit during the COVID-19 crisis?

The Association's Maintenance and Repair Obligation

By now it shouldn't come as a surprise to any property manager or board member that a condominium board has both statutory and contractual duties relating to the maintenance and repair of the community's common elements. Florida courts have stressed that an association board acts at its distinct peril in neglecting these duties. Not only does the board face the possibility of being directed by a court to take action, or the association being assessed damages for its failure to act, but under the Florida Condominium Act an association faces the prospect of having to reimburse a unit owner's attorneys' fees and costs in securing relief against a recalcitrant association. See Coronado Condominium Association, Inc. v. Scher, 533 So. 2d 295 (Fla. 3d DCA 1988).

Entry into Units – Standard Authority

There are times where discharging its maintenance and repair obligations requires an association to enter into an owner's unit. These instances are always ripe for disagreement. The Florida Condominium Act provides statutory authority on the association's side in the right circumstances. Fla. Stat. 718.111(5) allows a condominium association to enter a unit during reasonable hours in order to maintain or repair that which the association has a duty to maintain or repair, "or as necessary to prevent damage to the common elements or to a unit or units."

Despite this statutory ground for unit access, it is worth noting that Florida courts have construed these grounds narrowly. Recent appellate court decisions have looked for both: a) independent contractual authority to enter within the governing documents; and b) that the board's decision to enter is supportable as a reasonable business judgment under the circumstances. See, e.g., Small v. Devon Condominium B Association, Inc., 141 So. 3d 574 (Fla. 4th DCA 2014).

Emergency Powers

The Florida Condominium Act also vests boards with special powers during times of declared states of emergency. Fla. Stat. 718.1265(j). If an official state of emergency is declared, a condo board can authorize entry into a unit in order to "mitigate further damage" by arranging "for the removal of debris, or to prevent or mitigate the spread of mold or mildew, or by removing wet drywall, insulation, carpet cabinets or other fixtures." No doubt these approved mitigation efforts are directed squarely at hurricane events. However, the declaration of a state of emergency - even as to a global pandemic – will provide a board with broad statutory cover for acting decisively to mitigate concurrent storm or water-related damage to other units and common elements.

How Does COVID-19 Exposure Fit Into the Analysis?

Even without a declared state of emergency and enforced stay-at-home restrictions, owners may still be extremely reticent to allow strangers into their homes, and boards may be equally concerned about the safety of their employees and agents, or the legal ramifications of exposing people to the COVID-19 virus. These are valid concerns; yet, at the proverbial end of the day, a condo board must always act reasonably to protect, maintain and repair common elements and other units. State of emergency or not, as we approach the storm season in Florida many associations may find themselves in the unenviable position of having to risk COVID-19 exposures in performing otherwise reasonable actions to secure common property. It will be incumbent upon boards to ensure that their decisions are well-founded, documented, and otherwise reasonable under the circumstances.

Common sense should guide a board in implementing an entry into an owner's unit. As much notice as is practicable should be given. CDC guidelines relating to social distancing and disinfecting should be followed by those entering the unit. Unit owners should be pre-informed on exactly what precautions will be taken to minimize exposure risk. A savvy condo board would do well to establish and communicate these emergency protocols now, rather than hastily cobble them together immediately before, during, or in the aftermath of a weather catastrophe or plumbing leak.

Conclusion

Despite the novel and significant risks posed by the current coronavirus pandemic, COVID-19 should be appreciated as an existing condition to be protected against by following CDC guidelines; it should not be viewed as an excuse for avoiding reasonable protective action against imminent or further property damage. 

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