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.