The news media has generated tremendous  fear associated with health problems caused by Chinese Drywall.  However, this widespread fear may be entirely misplaced.   Headaches, cough, sinus problems and breathing problems are also associated with the presence of mold.  Given the fact that Chinese Drywall was installed in a vast minority of homes, it is far more likely that problems associated with the symptoms identified above are caused by mold as a result of water intrusion.  For example, roof leaks, window leaks and door leaks will allow water to enter into a home possibly leading to the development of mold.  Likewise, if there is a fault – even a small fault—in an air conditioning system, the collision of warm air and cold air will result in condensation which, very likely, will result in mold growth.  It should also be noted that it is not uncommon for air conditioning coils to turn black due to the presence of mold (this issue is also known to occur in Chinese Drywall cases). 

The point is this:  if anyone has the symptoms mentioned above, the public should also be aware that there may be a culprit other than Chinese Drywall.   If there is a concern over the presence of Chinese Drywall, we would recommend that a home be tested for the presence of mold as well.  We also suggest that homeowners discuss problems with other homeowners in their community to find out if there are common complaints and issues.  We would not be surprised to find out that other individuals have issues with, for example, their air conditioning systems or windows.  If there are common complaints like these, homeowners should not limit their investigation solely to the existence of Chinese Drywall.  Instead, we believe it is imperative that the home be tested for mold as well.

We are not downplaying the presence of Chinese Drywall and we continue to be interested in pursuing these claims.  However, we feel it important for the public to understand that health problems may be caused by something other than Chinese Drywall, e.g., mold, and that determining the source of the problem in a home should not be limited to one cause only.

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.

At an accident scene, many people believe that low impact automobile collisions do not require medical treatment.  However, it is very common for people to experience increasing pain in the days after a collision.  Keeping this in mind, even in a small collision, we would suggest going to a physician as soon as possible if for no reason other than to make sure that nothing serious occurred in the accident.  In the event that there is an injury related to the collision, this early medical treatment will generate a well-documented history of the symptoms after the accident.  Of course, each individual should freely discuss their injures and the medical care they received with their physicians.

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.

Our office continues to get many inquiries concerning Chinese drywall.   As most homes have drywall throughout the premises, the potential construction defect claims for the use of this material can be staggering.  In order to determine whether a home has been constructed with the Chinese drywall, the homeowner needs to find out the identity of the manufacturer.  If it all possible, it makes sense to remove some drywall from an un-noticeable area to determine the ‘s identity (unless, of course, the homeowner already knows who the manufacturer is).  (It is important to replace and seal the drywall that was removed once the manufacturer can be identified.)  Drywall from The Knauf Group, Banner Supply and Rothchilt International, Ltd., have been linked to the sulfuric-smelling problem drywalls in homes.  If the removed drywall references any of these manufacturers, the homeowner may face the prospect of needing to replace a substantial amount of drywall (perhaps all of the drywall in a home).  As explained elsewhere in this blog, a homeowner would need to go through the Chapter 558 process before seeking legal redress from the general contractor or subcontractor.  Either way, if a homeowner believes that they may be exposed to the Chinese drywall, it is better to be proactive then to take a “wait and see” approach.

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.

Individuals in search of mold remediation contractors should note that, presently, there are no Florida statutes regulating this profession.  For that reason, it is very important to gather as much information as possible about the qualifications of a mold remediation contractor.  At a minimum, we suggest that individuals request a copy of the proposed contractor’s insurance policy and a statement (preferably in writing) about the warranty or guarantee that the contractor will provide for the remediation work to be performed.  Additionally, we suggest that an individual specifically inquire of the mold remediation company  whether the contractor has determined that the source of the water intrusion has been found and fixed.   The failure to remedy the source of the water intrusion prior to conducting the remediation could very well result in the mold returning thereby causing the individual to spend, perhaps, thousands of dollars for a failed remediation.  Thus, if a remediation company cannot provide an individual with this specific information, we suggest consulting with a mold professional who can confirm the absence of the water intrusion source before doing any remediation.

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.

Recently, there has been a tremendous amount of news concerning the use of drywall originating in China.   Specifically, drywall manufactured by The Knauf Group, Banner Supply and Rothchilt International, Ltd., have all been accused of selling/distributing drywall containing “fly ash” which can emit a sulfuric-type smell.  Under Florida law, claims for defective construction materials such as the “fly ash” drywall may be  required to go through the Chapter 558 presuit construction defect statutes prior to filing suit against the manufacturer, seller and/or builder/subcontractor.   Because drywall is often used throughout a home, the extent of the “fly ash” contamination may be significant.  Claims for defective materials like the fly ash” drywall must be analyzed on a case-by-case basis to determine whether the presuit construction defect statutes apply as there may be some exceptions (notably personal injury) to the 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.

Mold-related health claims can be very difficult from a litigation standpoint.  Our firm receives many inquiries from people seeking personal injury damages because of mold exposure.  As is often the case, however, people have not tested their condominium units/homes/apartments for the presence of mold.   Mold testing will provide a person with a detailed analysis showing exactly the types of mold that a person has been exposed to.  The advantage of this information is that a doctor can than specifically test, for example, the allergic reaction caused by the particular mold exposure.  Without specific testing, though, proving a personal injury case will be extremely difficult.  Irrespective of any type of mold-related legal action, it is important to at least know what someone has been exposed to in order to seek the appropriate medical care. 

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 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.