Condominium unit owners who rent their units need to take tenant complaints about the existence of mold very seriously.  While the landlord must maintain the unit, the condominium association has a statutory obligation to maintain the common elements.  In the event that the mold is caused by water intrusion stemming from a common element, the unit owner cannot just wait for the Association to take care of the problem.  Instead, the landlord must demand the Association to fix the common elements as quickly as practicable and should stay on top of the Association until the common elements are fixed.  Because Associations often take time to address situations like this, the landlord should make every effort to accommodate their tenant.  This may mean that the landlord should agree to end the lease and pay for the tenant’s moving costs.  While this may be an extreme situation, the landlord must understand that the existence of mold in the unit can expose the landlord to liability.   If the Association drags its feet to correct the common element problem, the unit owner would have a potential claim against the Association for lost rent.  Of course, each situation is different and needs to be addressed on its own merits.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

In the last blog entry, I mentioned the “impossibility of performance” doctrine as it relates to a purchaser trying to terminate a condominium construction contract.   One of the exemptions applicable to the Interstate Land Sales Act (“ILSA”) allows a developer to avoid complying with the registration terms of the act provided that the condominium unit is delivered within two (2) years of the date of the new construction contract.  Standard contract language often contains a “catch all” known as a “force majeure” clause that would seek to extend the two (2) year compliance deadline.   Florida law, however, really limits this “force majeure” clause to those situations where the developer encountered a problem sufficient to rise to the level of “impossibility of performance.”  Generally, this is a very high standard to meet.  For example, if a hurricane destroyed a condominium project, this would meet the test of “impossibility of performance” and would extend the deadline for the developer to deliver the property.  On the other hand, if the developer simply found it more difficult to deliver the project or more expensive to complete the unit because something foreseeable occurred – like a delay in obtaining construction materials—this would not rise to the level of “impossibility of performance” and the two (2) year deadline would not be extended.  Either way, litigation in this area often comes down to the issue of whether a particular set of circumstances is sufficient to meet the “impossibility of performance” level, but a purchaser who seeks to get out of their condominium contract should know that this is a very difficult standard for the developer to meet.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

It’s no secret that condominium developers have built huge buildings throughout the South Florida area.  One just needs to turn an eye toward the east where they will be greeted with high rise after high rise.  While the beach front areas have always been a popular area for condominium development, the housing boom in the early part of the decade led developers to build condominiums all over Florida.  

However, with the housing slow down and falling prices, many people want to “get out” of their contracts with condominium developers because money is tight and because the value of new construction has significantly decreased.  In some instances, purchasers can get out of their condominium contracts if the developer has failed to deliver the unit within two years of the contract, unless the reason for the delay is subject to Florida’s “impossibility of performance” doctrine.  (I’ll discuss this later on in another blog entry.)

In other cases, development is subject to the Interstate Land Sales Act, a federal act that requires registration with the Department of Housing and Urban Development.  Within this statute, the developer has to satisfy many requirements but, at the same time, ILSA often makes it difficult for purchasers to terminate those contracts.   However, the Code of Federal Regulations regarding ILSA can be used as a basis to terminate contracts (or seek damages under Florida law for deceptive and unfair trade practices).

Many developers, in an effort to sell condominiums, made various representations about the profitability of purchasing units at a particular development.  Depending upon the nature of the representations about profitability or, for example, the language in which the contracts were originally prepared, purchasers may have remedies available to them that would be separate from whatever language is contained in the purchase agreement.  Our firm is encountering more and more of these types of cases that require analysis under the federal regulations in order to determine a purchaser’s rights.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Condominium unit owners and home owners alike should note that mold infestation may not be limited to just drywall, carpeting, etc.  Air conditioning systems can breed mold.  For example, if duct work is not appropriately sealed or if there are other points where cold air comes into contact with warm air throughout the air conditioning system, moisture will develop at the point of that “leak” which can then produce mold.  As a result, the air conditioning system can literally disperse mold throughout the home.   Additionally, if there is mold in the wall spaces and the air conditioning system is compromised, mold can be sucked up into the system from this extrinsic source.  Either way, an air conditioning system that has actual or potential leaks can continue to spread mold even if there has been a remediation.  Thus, prior to conducting a meaningful remediation, the homeowner/unit owner should make sure that the entire air conditioning system is in good working order.  The last thing anybody wants to do is to pay thousands of dollars to remediate the home to only find out later on that there is mold within the air conditioning system that being spread throughout the home.
 
The homeowner/unit owner should keep in mind that, in new construction, the air conditioning installer may not have done their job correctly and that, as a result, the owner may have a direct claim against the contractor for a construction defect or negligence.  As with any mold case, it is important for a homeowner/unit owner to document, with photographs, any and all problems that may exist in the home.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Given the fact that there are so many uninsured drivers in the South Florida area, we believe that each person that carries automobile insurance should also carry uninsured/underinsured motorist coverage (also known as UM coverage).   This coverage is so important as it may be the only way for a hurt individual to recover any type of damages for injuries stemming from a car accident.   For example, in most “hit and run” accidents, the adverse driver is never found.  For that reason, an injured party will most likely not be able to recover damages from the “hit and run” driver.  Thus, UM coverage would allow an injured person to recover damages for their injuries from their own insurance carrier.   Likewise, if a person is injured by a driver that carries minimal insurance ($10,000.00), and that person’s damages are $20,000.00, for example, having UM coverage would provide that person with an ability to be fully compensated for their injuries.   While the costs and the varying types of UM coverage should be discussed with an insurance agent, we believe that all drivers should fully consider UM coverage given the significant number of uninsured and underinsured drivers in the South Florida area. 
 
This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

With all the new housing construction that occurred over the last few years preceding the current housing crisis, many homeowners found mold throughout their homes due to the presence of multiple water intrusion sources.   Mold in the home affects all types of homeowners without any type of discrimination in the value of the house.  Our firm has seen water intrusion sources stemming from roofing problems, door and window problems, air conditioning problems  and sloping problems on decks and on the ground that caused water to flow back toward the house.  Of course, this list is certainly not exhaustive.  However, if there is a viable claim against a home builder/developer, a homeowner must be cognizant of the fact that there is a statutory process that must be undertaken (with limited exceptions) before filing suit against the builder.  There is also some question as to whether this same pre-suit process applies to a builder’s subcontractors (with whom the homeowner has not directly contracted with) which may affect a homeowner’s ability to file suit against that entity.  On the other hand, this pre-suit process often leads to resolution of claims without the need to file a lawsuit.  The homeowner must be aware that this process can be very difficult to navigate (and also leads to other issues such as whether the homeowner may be required by the builder to release all claims that they may have against that builder).  As a result, a homeowner must carefully consider whether their potential claims should be limited to the builder only or should be made against both the builder and its subcontractors.  Likewise, the homeowner should carefully consider the potential legal pitfalls that could occur in this pre-suit process.
 
This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Water intrusion suffered by a condominium unit owner often leads to the development of mold.  Putting aside the fact that mold can negatively impact one’s health, unit owners face difficult challenges trying to repair their units because of the interplay between a “common element” and the unit owner’s responsibilities.  While common elements generally involve the unfinished perimeters of a unit, for example, condominium associations do not regularly take steps after a water intrusion event to remove drywall or to take other steps to dry out these perimeter areas (common elements or limited common elements as defined by the Declaration of Condominium).  When the Association fails to dry out the water intrusion affecting the common elements, the Association creates a positive environment for mold to develop.  As a result, if there is a water leak from a neighboring unit or from the roof of the condominium, etc., a unit owner recognizing the existence of water intrusion should immediately notify the Association.  If the Association does nothing, depending on the circumstances, then a unit owner can seek damages or injunctive relief to force the Association to maintain the common elements which it is required to do by statute.  Obviously, a unit owner wants to ensure that their unit is free from mold and if the Association does not maintain or repair the common elements following a water intrusion event, then the unit owner has the statutory right to take legal action.
 
Of course, each case must be evaluated on its own merits as each case has its own factual circumstances. This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

As an attorney handling condominium contract deposit disputes, I have concerns that the current economic crisis is going to further impair the ability of those seeking to recover their construction deposits from doing so.   Generally speaking, many developers required twenty (20%) percent down, half of which was held in escrow while the other half was used for construction purposes.   Many of those individual condominium units that were purchased never closed, leaving the developer with a loss of funds to pay the debts on their mortgages and/or their construction financing.    This could lead to banks foreclosing on the property or could result in the court appointing a receiver to run the developer’s business.

Because of the economic crisis, developers will have trouble obtaining funds on credit to stave off foreclosure or receivership.  In either scenario, a unit purchaser will have a tremendous difficulty recovering their deposit in excess of what is being held in escrow.   For that reason, it makes sense that a purchaser seeking to recover their deposit back should initiate the process sooner rather than later as, it would seem, the longer one waits, the less likely it will be to recover a deposit in an amount greater than what has been held in escrow.

Of course, however, each case is different and should be evaluated on its individual merits. This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.