1. Homeowners associations and condominium associations in Florida have different requirements when it comes to examining and certifying construction defects.
2. Condominium associations are required to have a licensed engineer and/or contractor examine and certify construction defects.
3. These requirements are in place to handle disputes affecting condominium unit owners concerning matters of common interest. -Section 718.301(7), Florida Statutes applies only to claims against a developer for construction defects.
-It does not apply to claims against contractors or subcontractors.
-The statute does not provide guidance on when the examination and certification must occur or any penalties for not obtaining it before filing a lawsuit. 1. Section 718.301(7), Florida Statutes, may be rarely an issue in condominium construction defect actions due to lack of case law interpreting the provision.
2. Condominium associations should have an examination and certification of construction defects before initiating a construction defect lawsuit.
3. Homeowners associations may have claims against developers for construction defects, disputes over property inclusion as common areas, financial irregularities, disputes over easements, and failure to pay assessments on developer-owned lots. 1. The Florida Rules of Civil Procedure and Florida Statute 720 allow an HOA to bring claims on behalf of its members for matters of common interest.
2. Before beginning litigation against any party where the amount in controversy exceeds $100,000, an HOA must obtain approval from a majority of voting interests at a members meeting with a quorum present.
3. Some HOA governing documents may contain provisions that create obstacles for the HOA to bring a claim against a developer, such as requiring developer approval or an impractical member vote.
4. Section 720.3075 of the Florida Statutes prohibits the inclusion or enforcement of clauses in HOA governing documents that prohibit or restrict the HOA from filing a lawsuit against the developer. – Developer liability in COA/HOA laws of Florida differs, with developers being responsible for violations of Condominium Act or rules prior to relinquishing control of the association.
– Chapter 720 of the Florida Statutes does not have limitations on developer actions and indemnification responsibilities.
– The statute of limitations for actions by a condominium association or cooperative association does not begin to run until the unit owners have elected a majority of the board of administration, but Florida HOA law under Chapter 720 does not have such shield. 1. Condominium associations in Florida have the right to sue on behalf of all unit owners for matters of common interest.
2. This includes issues related to common elements, structural components, and representations by the developer.
3. Homeowners associations in Florida also have the right to sue on behalf of all members for similar matters of common interest. 1. The attorney for a condominium or homeowner’s association is usually directed by the association’s board of directors.
2. For homeowner association claims, a vote by the members is required before commencing litigation involving amounts in excess of $100,000.
3. The quorum requirement for obtaining member approval for litigation may be eased if the governing documents are more restrictive.
4. Lawsuits may be inadvertently begun in violation of statutory requirements, potentially leading to a motion to dismiss the action. 1. The appellate court found that the requirement for an association to obtain membership approval before commencing litigation is a statutory limitation designed to protect its members, and violation of this requirement does not serve as an affirmative defense to the claims asserted by the association.
2. The court ruled that the defendant developer, as a member of the association, had standing to raise the issue of improper membership approval for the lawsuit.
3. The court also noted that if the developer were not still a member, such claims could not even be raised. 1. The Condominium Act, Chapter 718, Florida Statutes applies to common condominium facilities that are jointly owned by individual members or governed by a recorded declaration for condominium ownership.
2. The Act provides a framework for creating and enforcing condominium association assessment liens.
3. A recorded declaration of condominium places obligations on unit owners, including the duty to pay assessments for maintenance of common elements.
4. The association has the right to file and enforce a claim of lien against a member’s unit if a delinquency is not cured. – Non-condominium communities are generally administered by a Homeowners’ association.
– The association is authorized to levy assessments that may be secured by a lien against the owner’s parcel.
– Residential homeowners’ associations are governed by the Homeowners’ Association Act, Chapter 720, Florida Statutes.
– For residential homeowners’ associations created on or after October 1, 1995, section 720.308 and section 720.3085, Florida Statutes, regulate homeowners’ association assessments.
– A declaration of covenants, conditions, and restrictions generally encumbers both the individual residences and the common property in a homeowners’ association.
– The declaration provides for the rights and obligations of membership in the homeowners’ association, the requirement for assessments to be paid for common expenses, the association’s right to file and enforce a claim of lien if assessments are not timely paid, and restrictions on the use of the common properties.
– There are substantial differences between Chapter 718 and Chapter 720 regarding construction defect presuit notices, developer liability, tolling of the statute of limitations, the right to sue, and liens in Florida community associations.
https://www.jimersonfirm.com/blog/2014/09/differences-homeowners-association-condominium-association-law-florida-part-iii-construction-defects-statute-limitations-liens/
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