Associations

Question 1

Condo assns are regulated by Chp. ____, and homeowner’s assns are regulated by Chp. ____.

Answer 1

718 (condo), 720 (homeowners)

Question 2

Before filing suit against the Developer for construction or design defects, what is a condominium association required to do (this is not a reference to 558)?

Answer 2

The defect must be inspected and certified by an appropriately licensed engineer, design professional, or contractor.

*** The statute doesn’t specifically say this has to be done prior to litigation, but the instructor (Ansbacher) stated that was the case.

Question 3

Under Chp. 720, in order to file suit in the name of the association against anyone where the amount in controversy is over $100,000, the association must do what?

Answer 3

Receive majority approval of a membership meeting in which a quorum is present.

Question 4

Are there any tolling provisions found in Chp. 720?

Answer 4

No. But there is a tolling provision in 718.

Question 5

Describe the tolling provision in Chp. 718.

Answer 5

The statute of limitations for any action at law or equity which the condo or cooperative association may have does not begin to run until such time as the unit owners other than the developer have elected a majority of the board of directors. However, this DOES NOT toll the statute of repose in 95.11(3)(c) per the Sabal Chase case.

Question 6

When was Chp. 720 enacted?

Answer 6

2000. But HO assns were regulated by other provisions prior to that time, but not in the comprehensive manner they are now under 720.

Question 7

Chapters 718 and 720 have similar provisions governing the attorney-client privilege as applied to board meetings. Explain the provisions.

Answer 7

Board meetings and committee meetings must be open to all unit owners, except for meetings with the association’s attorney in which purpose is seeking/rendering legal advise. Furthermore, board can refuse to disclose to unit owners any document which would otherwise be protected by the attorney-client privilege.

Question 8

If a homeowner’s association sues a defendant and the amount in controversy is over $100,000, does the defendant have a defense to the suit if the association failed to obtain proper prior approval?

Answer 8

No. The Lake Forest case says the association’s failure to obtain approval prior to suit (a violation of Chp. 720) cannot be used as a defense by the defendant. However, an objecting homeowner could possibly enjoin the suit due to the association’s failure. The purpose of the statute is to protect the owners, not potential defendants.

Question 9

Fill in the blanks (718 applies). At the time the ____________________ elect a ____________ of the board members, the developer SHALL _________ control of the ______________ to the ___________ who SHALL accept control.

Answer 9

1. unit owners other than the developer
2. majority
3. release
4. association
5. unit owners
   (Commonly called “turnover”)

Question 10

Under 720, what is the timeframe for the developer to provide the required turnover documents/info/property?

Answer 10

The developer has 90 days from the date the members are entitled to elect a majority of the board of directors to furnish the required turnover documents to the board.

Question 11

Under 718, does the association or the unit owner have responsibility for exterior windows?

Answer 11

Trick question - this isn’t addressed by 718. There is no standard answer to “who owns what” as between the association and the unit owner - it is determined by Declaration of Condo/Articles/Bylaws. For this window example, in some instances the association has ownership/responsibility for exterior windows, and in some instances the unit owner does. Accordingly, it is very important in a condo case to figure out who has responsibility for the defective item as it may impact standing.

Question 12

Under 718, if the association violates the Condominium Act or any rule promulgated thereunder and the violation occurs prior to turnover, is the developer liable?

Answer 12

Yes, and developer would be subject to administrative action as provided in 718 and is liable to third parties damaged by any violation.

Question 13

What is the practical way for a homeowner’s or condo association to comply with Rule 1.720?

Answer 13

The board should delegate full settlement authority to one or more of its members, and that member(s) should attend mediation. However, the board must have the authority to make such a delegation.

The impractical option would be for a quorum of the board to attend mediation.

Question 14

Does the presence of a community association manager in a meeting between the association and its counsel waive the attorney-client privilege?

Answer 14

Nobody knows. No reported cases on this issue. It is an important issue because the association managers are usually the best sources of institutional knowledge within the condo/homeowner’s assn.

Question 15

Apply 718 and fill in the blanks. After control is obtained by the unit owners other than the developer, the association may maintain actions in its name on behalf of all unit owners concerning _________________________________.

Answer 15

matters of common interest to most or all unit owners, including but not limited to roof, common elements, structural components, MEP, and developer representations concerning facilities.
The association may be the representative member when it sues on behalf of the class.

Question 16

Try to name all documents/info the developer must turn over to the condo association control at the time the unit owners (other than the developer) elect a majority of the board members.

Answer 16

• Assn financial records
• Plans & specs, plus affidavit from developer or design professional stating the plans & specs being turned over were used for construction
• list of all contractors, subs, suppliers
• insurance policies
• C.O.s
• permits
• written warranties from GC, subs, suppliers, etc. that are still active
• any K to which assn is party (leases too)
• a turnover inspection report

Question 17

What are the requirements of a turnover inspection report?

Answer 17

Report must be recorded in official records, must contain information concerning required maintenance, useful life, and replacement costs of structural components and major systems, and must be signed/sealed by a licensed arch or eng.

Question 18

The warranty extended by the developer pursuant to 718.203(1) is a warranty of ___________________________.

Answer 18

Fitness and merchantability

Question 19

As to each unit, the warranty extended by the developer pursuant to 718.203(1) lasts _______ years beginning __________________.

Answer 19

3 years, beginning on the date the building in which the unit exists is completed (defined as CO)

Question 20

As to personal property transferred with or appurtenant to each unit, the developer’s warranty under 718.203(1) _______________________.

Answer 20

is for the same period as any manufacturer’s warranty, and commences from the date of closing on the unit or date of possession of the unit, whichever is earlier.

Question 21

As to the roof, structural, and MEP, the developer’s warranty under 718.203(1) is _______________________________.

Answer 21

3 years from the completion of the building or improvement (CO), or 1 years from the date the unit owners other than the developer obtain control of the assn, whichever occurs last, but in no event shall the warranty extend longer than 5 years.

Question 22

With regard to a non-unit improvement for the use of the unit owners, such as a gazebo, pool, tennis courts, etc., the developer’s warranty under 718.203(1) is ____________________________________.

Answer 22

3 years from completion of the improvement.

Question 23

Do contractors, subcontractors, and suppliers also provide condo warranties pursuant to statute?

Answer 23

Yes. 718.203(2).

Question 24

What type of statutory warranty do the GC/subs/suppliers provide to the developer and each unit owner under 718.203(2)?

Answer 24

Implied warranty of fitness as to the work performed or the materials supplied by them.

Question 25

How long is the GC/sub/supplier statutory warranty?

Answer 25

For roof, structural, and MEP, it is 3 years from completion of the building or improvement.

For all other improvements, the warranty is 1 year from completion of construction.

Question 26

Do the implied warranties in 718.203 extend to subsequent purchasers?

Answer 26

Yes.

Question 27

Are the implied warranties in 718.203 subject to any requirements imposed upon the unit owners or the association?

Answer 27

Yes. The warranties are conditioned upon routine maintenance being performed, unless the maintenance is an obligation of the developer or a developer-controlled association.