FLORIDA CONSTRUCTION LAW BLOG

New Condo Law

2010-07-02T15:40:00.000-04:00

As you may know, there have been substantial changes to the laws that affect condominium associations. As of yesterday, July 1, 2010, the following laws have taken effect. Please note that the below items are a summary of the actual law. If you want additional information on any of the below items, please contact me. 1.

Governor Crist vetoes Senate Bill 1964

2010-06-04T08:34:00.005-04:00

On June 1, 2010 Governor Crist vetoed Senate Bill 1964. This bill was quite controversial as it limited the tort liability of design professionals for economic damages resulting from their design defects. In essence, S.B. 1964 was legislatively overruling the Florida Supreme Court's decision of Moransais v. Heathman, 744 So.2d 973 (Fla. 1999). The Moransais decision held that the "economic loss

Avoiding the CON in Construction

2010-05-07T14:51:00.002-04:00

I normally don't write reviews for a book, but I will definitely make an exception for this one. I just finished reading "Avoiding the CON in Construction". It was great! This book is very easy to read, extremely informative and very practical. I highly encourage any homeowner that is thinking of taking on a construction project to read it. It will definitely help keep the homeowner out of

Soil liquefaction, earthquakes and Haiti

2010-03-02T14:35:00.002-05:00

In addition to poor design and defective construction, one of the causes of the mass destruction we saw during last month’s earthquake in Haiti is “liquefaction”. Liquefaction is a naturally occurring event in which the strength of soil is reduced by earthquake shaking. Specifically, the earthquake shaking causes a drop in the soil’s bearing capacity. Liquefaction is more likely to occur in low

Crane Ordinance: Part 2

2010-02-01T09:07:00.005-05:00

Last week, the U.S. 11th Circuit Court of Appeals in Miami rejected part of Miami-Dade County's crane ordinance. The Court concluded that part of Miami-Dade County's crane ordinance was overruled by federal wind load standards set forth by OSHA. Miami-Dade County had approved the ordinance after a series of fatal crane accidents in the county. The Miami-Dade County Crane ordinance requires crane

Finally, some relief for the HOA's!

2010-01-27T16:34:00.005-05:00

There was a very interesting article in today's Daily Business Review. Recently, in a "reverse foreclosure", a Miami-Dade Circuit judge agreed to force a lender to take title to a property from a homeowners association. Pursuant to Florida Law, banks are only required to pay the lessor of, 12 months or 1% of the mortgage in past due homeowners association dues. Therefore, many lenders are accused

Vote NO for Amendment 4!

2009-11-16T10:09:00.010-05:00

Amendment 4 will be on the Florida 2010 ballot. This Amendment requires voters to approve all local comprehensive land use plan changes. With this Amendment, the citizens of Florida, not the representatives they elected, will be expected to decide 400 to 500 intricate land-use planning amendments every year. To the average person, the Amendment sounds like a great idea. However, this Amendment

No more impression seals for engineers!

2009-11-03T17:50:00.005-05:00

Chapter 471.025(1) of the Florida Statutes requires that all engineers obtain a seal in a form approved by the Florida Board of Professional Engineers. Until recently, that meant an impression type seal. Effective November 16, 2009, rubber stamps will also be allowed. Pursuant to 61G15-23.001 of the Florida Administrative Code, "Any seal capable of leaving a permanent ink representation or other

Beware insurance companies...

2009-08-06T16:34:00.004-04:00

Insurance companies recently dodged a major bullet. A very important issue is lingering with severe implications for insurance companies. The issue is: Whether an insurer in Florida is responsible for paying the expense of bringing a building into compliance with the Florida Building Code after a hurricane damaged it?There was a very interesting article in today's Daily Business Review. QBE, an

Construction: "General Contractor Proper Payment Procedure"

2009-04-30T12:57:00.002-04:00

When dealing with private funding for a construction project, it is extremely important that you follow the lien law procedures prior to releasing any money to the general contractor or subcontractors. Failure to do so may result in you having to pay more than the agreed to contract price. Prior to receiving any payment, the general contractor should submit to the architect a payment application

Florida Statute 553 vs. The Economic Loss Rule

2009-01-22T17:00:00.002-05:00

Florida Statute 553.84 created a civil cause of action against a person who commits a building code violation. The Supreme Court of Florida held in Comptech International, Inc. v. Milam Commerce Park, LTD that the economic loss rule does not bar a claim under 553.84. Typically, the economic loss rule prevents a Plaintiff from bringing a tort action when the loss arises out of a contract and

The Impact of Trytek on Construction Lien Attorney's Fees

2009-01-06T18:20:00.001-05:00

In Florida, attorney’s fees may be awarded in only two circumstances. First, there is a statute that provides for attorney’s fees or second, it is based on a prior agreement between the parties (in a contract). The Florida Lien Law provides attorney’s fees for the prevailing party in an action to enforce a construction lien. Last month, in Trytek v. Gale Industries, the Florida Supreme Court

Fire sprinklers in homes?

2008-11-26T14:51:00.003-05:00

In a landslide vote this summer, the International Code Council mandated that fire sprinklers be required in all one and two family homes and townhouses built to the International Residential Code ("IRC") as of January 1, 2011. However, because IRC codes aren't enforceable until they are adopted by local jurisdictions, the long running debate over residential fire sprinklers is far from over.

What Welding Does to Aluminum

2008-11-05T16:26:00.006-05:00

This is an issue that architects, engineers and contractors need to look out for. Welding aluminum may create issues that do not get much attention for steel: the effect of the welds on the strength of the base metal. Welding significantly reduces the strength of the aluminum base metal. Reason being, the heat created by welding reduces the yield and ultimate strength of aluminum alloys that get

Establishing boundaries and ownership when property borders a lake

2008-09-23T09:02:00.006-04:00

As a lake rises and falls, so do the boundaries of any bordering properties. Therefore, it can be said that the boundary between privately owned uplands and submerged bottoms (often owned by government) is a dynamic one. Under Florida Law, riparian owners have the vested right to future accretion and reliction that inure to their benefit. State v. Florida National Properties, Inc., 338 So.2d 13 (

Contractor State Certification vs. Local Licenses

2008-08-19T10:40:00.004-04:00

If a contractor obtains a state "Certificate of Competency" this entitles said contractor to an occupational license in any portion of the state for the specific trade that has been been certified. A contractor that has received state certification is also known as a "Certified Contractor". Meaning, the contractor can work anywhere in the state and does not need to obtain a local certificate. On

Can Architects be held liable for delay damages?

2008-07-28T08:00:00.003-04:00

Yes... If a contractor is delayed by the fault of others under contract with the owner (i.e. by the architect's failure to: 1) provide approriate design docs; 2) properly administer the project; 3) timely approve shop drawings), the contractor may be entitled to delay damages from the liable party. Hewett-Kier Construction, Inc. vs. Lemuel Ramos & Associates, Inc. 775 So. 2d 373 (Fla. 4th DCA

Mechanics of the Surety Relationship

2008-07-07T17:54:00.006-04:00

A surety contract is a three (3) party agreement in which the Surety guarantees to the Obligee (usually the Owner) that the Principal (usually the General Contractor) will perform in accordance with the terms and condistions of the contract. Meaning, if the Principal fails to perform, the Surety promises the Obligee that it will answer the default of the Principal. In normal language, the Surety

Does Miami-Dade County's Crane Ordinance violate OSHA Rules?

2008-05-20T17:53:00.003-04:00

Great article in today's Daily Business Review. Local Builders and Contractors' Associations have filed suit claiming Miami-Dade County's crane ordinance steps on OSHA Rules therefore are requesting that it be blocked from becoming law. The Miami-Dade County Crane ordinance requires crane operators to undergo certification and requires that cranes be designed as "permanent" structures.

Liabilities of Homeowners' Association Developer-Appointed Directors...

2008-05-08T07:47:00.002-04:00

Developer appointed board members have the same fiduciary duties and responsibilities as non-developer appointed board members. Furthermore, developer appointed board members are expressly excluded from certain statutory liability limitations. Meaning, they can be sued in their personal capacity. If a developer has established a shell corporation, or has no assets, the developer appointed board

Can a local building official reject/deny a statewide product approval?

2008-04-22T17:57:00.009-04:00

A building official may deny the local application of a product approval which has received statewide approval, based upon a written report signed by the official that concludes the product application is inconsistent with the statewide approval and that states the reasons the application is inconsistent. Therefore, unless a local building official is willing to provide the above "written" report

New AIA Form A201 -- The General Conditions of the Contract for Construction:

2008-04-07T15:30:00.002-04:00

FYI... The American Institute of Architects (AIA) has completed a total remodification of its core contracts and issued a new form A201 -- The General Conditions of the Contract for Construction (2007 Edition). The A201 is the most often used document of all construction contracts, and virtually all AIA contracts refer to it. For more information on these revisions, there is a great book out

Are construction contract "pay when paid" clauses enforceable?

2008-03-27T19:24:00.005-04:00

Yes, they are... Although somewhat unfair, Florida Courts have enforced these clauses provided the language clearly and unambiguously states that the contractor does not have to pay the subcontractor/supplier until the contractor receives payment from the owner or lender. The key to enforcing these "pay when paid" clauses is that they be clear and unambiguous. Subcontractors and material

Florida's Transfer Bond Statute Isn't Working

2008-03-11T14:06:00.013-04:00

In a nutshell, Florida's Transfer Bond Statute is not working. Florida Statute §713.24, permits an owner whose property is encumbered by a claim of lien to transfer that lien off the property to other security, such as a cash deposit or surety bond. However, problems with Florida’s transfer bond statute have emerged. Meaning, lienors who have provided labor or materials are finding themselves

Bad News = Good News

2008-02-26T18:06:00.007-05:00

South Florida number 1 in home prices slide. South Florida home prices lost 17.5 percent in the final quarter of 2007, the worst performance in the nation, Standard & Poor's said Tuesday. Although this may sound like bad news, this is exactly what the economy needs. A CORRECTION! The sooner home prices correct, the quicker we exit the recession we are in.

RISKY BUSINESS: Construction Risks vs. Business Entity Selection

2008-02-14T11:04:00.004-05:00

Construction is risky. However, risks can be mitigated depending on the type of corporate entity you select for your business. (i.e. Corporation, Partnership, LLC) Corporations and LLC's limit an owners liability to the capital invested in their business. Meaning, owners will not be held personally liable for the liabilities of their business. This is also known as "piercing the corporate veil".

Troubled homeowners: Can't pay? Just walk away...

2008-02-07T07:47:00.000-05:00

Let's use are imagination and assume the following facts were actually "reality": 1) Property values are droping at the fastest rate in modern history. 2) As more and more ARMS (adjustable rate mortgages) begin to reset, monthly mortgage payments are spiraling out of control. 3) The end is no where in sight. Assuming these facts, what should a troubled homeowner who can't pay her mortgage

What's the worse that can happen if you violate a federal accessibility law?

2008-01-30T17:27:00.000-05:00

You may be ordered to tear down the entire building! This exact question was answered by a federal judge in Oregon. (Indep. Living Res vs. Or. Arena Corp., 1 F. Supp. 2d 1159) In this case, the federal judge stated that the ADA allowed him to order the demolition and reconstruction of the entire stadium. Although the judge was merely quoting the ADA, and did not actually order the demolition of

Vote yes on Amendment 1!

2008-01-27T14:33:00.000-05:00

Although a testy issue, I highly recommend that you vote "yes" on Amendment 1. Soaring real property taxes are a major burden on this states' construction/real estate industry. Although Amendment 1 may not be what we all want, it's certainly better than nothing. There was a great Q & A in last Monday's Miami Herald that explains the fundamentals behind Amendment 1. In a nutshell, Amendment 1 will

Can you foreclose on a construction lien attached to homestead protected property?

2008-01-22T10:57:00.000-05:00

The short answer to this question is, yes. Article X, Section 4(a) of the Florida Constitution states that an individual's homestead "shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or

Foreclosure Help!

2008-01-18T18:02:00.000-05:00

Great article in today's Miami Herald. Local nonprofits and government agencies are organizing efforts to deal with a wave of foreclosures sweeping over South Florida, in an effort to keep borrowers in their homes. If you know of anyone that needs help regarding the foreclosure of their home, please have them call the following organizations: Nationally: Neighbor Works America 888-995-HOPE;

Phony contractor accused of more rip-offs

2008-01-16T11:13:00.000-05:00

In yesterday's Miami Herald, there was an article about an unlicensed contractor who would enter into contracts with homeowners, begin some of the work, and become hard to reach after pocketing their deposits. Scams such as this are happening more and more. Before you hire a contractor, make sure you check the status of his contractor's license. This can easily be done at www.myfloridalicense.com.

Can illegal immigrants recover worker's compensation benefits?

2008-01-10T08:05:00.000-05:00

That's the issue in an article written by James F. Kidd and Rick Blystone. This area of the law is somewhat shady at best. The above article concludes that regardless of how Florida's Worker's Compensation Statute (F.S. 440) is interpreted, emphasis should be placed squarely on the shoulders of the knowing employee, who has "unclean hands" and not the unwitting employer. At the very least, courts

Beware Unlicensed Contractors.....

2007-12-21T11:21:00.000-05:00

Beware unlicensed contractors..... The failure to have a proper license as a contractor may have severe consequences to the individual or entity providing the work. Performing unlicensed work may result in the following losses: 1) loss of lien rights (F.S. 713.02); 2) loss of contract rights (F.S. 489.128); 3) treble damages (F.S. 768.0425); 4) damages for violating the Florida Building Code (F.S