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Ask CalAttorney2 Your Own Question
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Purchased house (run as condo) 11 years ago and at purchased

Customer Question

Purchased house (run as condo) 11 years ago and at purchased extended the porch. However, the pad is now ripping away from the house because the drainage is causing erosion. The drainage was incorrectly put in by the builder. Now the Association's attorney is saying that they are not liable pursuant to Florida Statute 718.111(11)(n). Both homeowners (thiers and the association's) state they are not liable. Help! do I have any recourse?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  TJ, Esq. replied 1 year ago.

Hello and thank you for the opportunity to assist you. My name is ***** ***** I will do my very best to answer your legal questions.

Could you please clarify what you mean when you write:

"and at purchased extended the porch" -- Do you mean that you extended the porch after you've purchased the property?

"The drainage was incorrectly put in by the builder." -- Which builder? Do you mean the builder of the condo, or the builder of the porch extension?

"Both homeowners (thiers and the association's)" -- I'm not sure what you mean by this. Which homeowners are you referring to?

Thank you.

Customer: replied 1 year ago.
Thank you for answering. This is a complex case and rather a "bag of worms." Sorry that I was not more explicit. When we purchased the house 11 years ago, we contracted with the original developer to extend the porch before we closed on the house. This extension took up a portion of the common ground. This development (Osprey Village) is run as a condominium association with a board, etc., under Florida Statute 718. Even though it is run as a condo, the units are individual homes. A lot of owners have extended their porches. So in answer to your question (1) the extension was part of the original purchase; however, the extension was finished afterwards when the builder had the time to do the work; and no, it does not feature in the original drawings. However, I do have a certificate of sale from the contractor stating that the porch was part of the original purchase.Question (2): The original developer was supposed to put in a retention wall behind the property for drainage purposes; however, the St. John's Water Management did not sign off on the development; that was accomplished by the county although I don’t understand that, together with the Condo Association, without the retention wall being added. Since that time, the storms, etc., have washed out the soil and the common ground under our pad extension; and the pad extension has dropped causing our extension to tilt away for the house extension.Question (3): This was vague and I apologize. I meant that both our homeowner's insurance policy and the condo's insurance policy have declined to cover the damage. Our homeowner's insurance policy covers only the inside of the dwelling (from the middle of the walls in). The outside is covered by the Association. We had no idea that our porch was not covered by the Association.Since I last communicated, we have had a communication from the Association's attorney. She maintains, that in accordance with Section 718.111 (n) we are not able to claim relief for the pad as this improvement was not added to all units. We are not the only unit owners with an extension pad.My argument is that the pad was built on the common ground by the developer. We added a screen enclosure with tactic agreement of the Condominium Association and therefore could be considered part of the original design. Does the doctrine of laches apply here?The condo association also maintains that the Association's Insurance policy does not cover this cracked pad. However, I feel that Florida Statute 718.7(11) (d) comes into play here, since the common ground around and under the pad is continually being in eroded. Also, the Association is supposed to maintain the swale repair on the common elements. Since the ground is being continually eroded the drainage swales in this area are not working well.I really don't want to fight with our Association; however, my concern is even if the repair was done to the porch, what is to say that in another couple of years the same situation occurs?We are retirees and do not want a costly lawsuit with the Association, who is in a much better position to defend that we. Would you suggest filing for Arbitration/mediation with the Department of Business and Professional Regulation in Tallahassee? I welcome any thoughts and/ or advice.
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

My name is***** am a different expert on the forum. Your prior expert had to step away (this sometimes happens).

I have reviewed your post and if I understand correctly, your matter deals with construction defects (you purchased a home with a porch extension. The construction occurred at least 11 years ago (if not more). The porch is now showing signs of significant damage due to improper construction techniques).

Unfortunately, you are likely without any remedy in this circumstance. Florida has a statute of repose for construction defects of 10 years (see: This means that even if a defect is "latent" (invisible to the naked eye, and there are no outward signs of problems), the homeowner/property owner must bring suit within 10 years of completion (the article I referenced gives more details on this). This type of statute of repose is common throughout the US and is one of the more generous ones.

Similarly, most homeowners and HOA insurance policies do not cover construction defects. While it is possible that a carrier could write such a policy, the premiums for such a plan would likely far outweigh any benefit. Unless you have negotiated an unusual homeowners policy, or your HOA has negotiated an unusual policy for the common areas, these policies will not cover construction defect.

As far as the HOA covering your porch area vs it being a separate interest, I would speculate (keep in mind, this is an internet forum, I am not able to review your CC&Rs/governing documents and cannot provide you with a formal legal opinion), that this patio area is part of the "separate interest" (meaning it is your responsibility not the HOAs). I am basing this speculation on the fact that only a few of the units have these extensions, the area is separated for your use alone (you have it screened in so that only you can use it), the HOA's attorney is taking the position that they are separate (I am not telling you to blindly accept their position, but I want to let you know I am taking this into account with my speculation). To come to a more thorough understanding of your rights vis a vis the HOA, and maintenance responsibilities for the porch (keep in mind, if the HOA is responsible for maintenance and they deem that not all condos are entitled to porches, they may simply remove the porch!), review your CC&Rs carefully, look specifically to their definition of what is "common area" and what is "separate interest" - this is where the distinction will break down.

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