Posted on May 18, 2009 by Sanjay Kurian

Roof Leaks and the Statute of Limitations

One of the most important issues for any legal claim is the statute of limitations, and claims for construction defects are no different. The statute of limitations is the time frame within which a lawsuit must be filed in order to have any recovery against the party or parties responsible for the damage. This is especially important where the defect is one resulting in building leaks.

Assume that you hire a roofing contractor who replaces your roof. The day after making final payment you discover water damage on the ceiling. You determine the new roof is leaking. You have 4 years from that date within which to file suit. The reason is that a claim for construction defects must be brought within four years of the time that a defect was discovered, as in our hypothetical, or should have been discovered through the exercise of reasonable diligence. The Statute of Limitations would begin to run from the date of the first leak. This puts the onus on an owner to not ignore the problem, but conduct reasonable investigation and file suit if necessary. The liability of the contractor is not endless, but is limited by the statute of repose, which cuts off any and all claims for construction defects ten years from the completion of the contract. For example if the leak was discovered 7 years after completion of the contract, then you would only have 3 years left to file suit.

An important point is that the limitations period continues to run, even if the contractor attempts to repair the roof. I have seen numerous cases over the years where people had the contractor attempting to repair the building to no avail, and then found themselves outside the limitations period. Unfortunately, there is no tolling of the limitations period. If the contractor spends years trying to fix the roof, and suit was not filed within 4 years, then you have lost your legal rights. Every owner should be vigilant and take necessary steps to protect their rights.

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Posted on March 12, 2009 by Lisa Magill

Q&A: Is Membership in your HOA required by Statute?

A blog reader recently posed a question containing the following statement:

We are a HOA of 8000 parcels, and we do not have Statutory required membership or developer reserves.

Membership (mandatory or voluntary) in an homeowners association (HOA) is not regulated by Statute.  Section 720.301(9), Florida Statutes defines an "homeowners' association" or "association" subject to the requirements of Chapter 720 as:

... a Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on a parcel.  The term "homeowners' association" does not include a community development district or other similar special taxing district created pursuant to statute.

In the event the association is considered a "homeowners' association" pursuant to Chapter 720, Florida Statutes and the budget contains reserve accounts (as defined therein), those reserves must be determined, maintained and waived in compliance with the statute.

More information is available about governance of homeowners' associations from Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares and Mobile Homes.

 

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