Monday, January 10, 2011

Owners in newly built Florida residential communities might have additional warranty protection!

A matter pertaining to just how far a developer’s warranty extends in a community association development has been certified to the Florida Supreme Court.

The landmark 1972 case of Gable v. Silver held that developers in Florida are deemed to give an implied warranty that any home they build is “habitable” or reasonably fit for ordinary use as living quarters.

A developer breaches this duty if a home it builds does not meet ordinary standards found in homes of comparable quality in the marketplace. For example, a home built in South Florida with a non-functioning air conditioning system would likely not meet this standard since the home would not be “habitable” whereas one built with a functioning but very noisy AC might not constitute a breach.

Up until now, Florida courts have consistently held that a developer’s implied warranty of habitability extends only to the construction of the home itself and improvements that immediately support the home’s structure such as the roof, septic tank, etc. Items such as roads, drainage systems, seawalls, bodies of water and other common areas and recreational facilities were not viewed as being included in the developer’s implied warranty of habitability.

This was the case until the 5th DCA’s holding on October 29, 2010 in the case of Lakeview Reserve Homeowners v. Maronda Homes. In that case, the court held that the “immediately supporting” standard is not limited only to items that are directly attached to the home and instead, reinterpreted this standard to include anything that provides a “service essential to the habitability of the home.” Of course, the true test will be what services are essential to a home’s habitability. Do you need a functioning guard gate, safe roads, a mold-free Clubhouse, etc., to live in the home?

This decision and reinterpretation of the traditional warranty standard and kicks the door open to defects in the roads and other common areas falling within the developer’s warranty.

Of course, this 5th DCA decision conflicts with an opinion previously rendered by the 4th DCA, hence, the certification to the Florida Supreme Court to resolve the matter. Depending on the outcome of that review, the Lakeview case could be a boon to Florida’s homeowners dissatisfied with the final building product that was delivered to them.

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

1 comment:

  1. I think it may continue, considering the fact that owners in Florida Residential Communities need it.

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