Many courts enforce forum selection clauses in contracts between parties. In W. Bay Plaza Condo. Ass’n v. Sika Corp., No. 3D21-1834, 2022 Fla. App. LEXIS 1637 (W. Bay Plaza), the Court of Appeal of Florida, Third District (Court of Appeal) answered the question of whether a mandatory forum selection clause in a manufacturer’s warranty was enforceable as to a condominium association, who was a non-signatory. The trial court enforced the forum selection clause – calling for litigation in New Jersey rather than Florida – and the Court of Appeal affirmed the ruling. Continue reading
In D’Allesandro v. Lennar Hingham Holdings, LLC, 486 Mass 150, 2020 Mass. LEXIS 721, the Supreme Judicial Court of Massachusetts answered a certified question regarding how to apply the Massachusetts statute of repose, Mass. Gen. Laws ch. 260, § 2B, in regards to phased construction projects. The court held that, in this context, the completion of each individual “improvement” to its intended use, or the substantial completion of the individual building and the taking of possession for occupancy by the owner or owners, triggers the statute of repose with respect to the common areas and limited common areas of that building. Additionally, the court held that where a particular improvement is integral to, and intended to serve, multiple buildings (or the development as a whole), the statute of repose is triggered when the discrete improvement is substantially complete and open to its intended use.
In Erie Insurance Exchange v. Alba, Rec. No. 190389, 2020 Va. LEXIS 53, the Supreme Court of Virginia considered whether the trial court erred in finding that a condominium association’s property insurance provider waived its right of subrogation against a tenant of an individual unit owner. The Supreme Court reversed the lower court’s decision, holding that the insurance policy only named unit owners as additional insureds, not tenants, and thus the subrogation waiver in the insurance policy did not apply to tenants. The court also found that the condominium association’s governing documents provided no protections to the unit owner’s tenant because the tenant was not a party to those documents. This case establishes that, in Virginia, a condominium association’s insurance carrier can subrogate against a unit owner’s tenant where the tenant is not identified as an additional insured on the policy.
The Alba case involved a fire at a condominium building originating in a unit occupied by Naomi Alba (Alba), who leased the condominium under a rental agreement with the unit owner, John Sailsman (Sailsman). The agreement explicitly held Alba responsible for her conduct and the conduct of her guests. An addendum to the lease stated that Sailsman’s property insurance only applied to the “dwelling itself” and that Alba was required to purchase renters insurance to protect her personal property. Along with the rental agreement, Alba received the condominium association’s Rules & Regulations, Declarations and Bylaws. Continue reading
Courts often struggle with the question of when the statute of repose starts to run for construction projects that involve multiple buildings or phases. In Village Lofts at St. Anthony Falls Ass’n v. Housing Partners III-Lofts, LLC, 937 N.W.2d 430 (Minn. 2020) (Village Lofts), the Supreme Court of Minnesota addressed how Minnesota’s 10-year statute of repose, Minn. Stat. § 541.051, applies to claims arising from the construction of a condominium complex. The court held that the statute of repose begins to run at different times for: a) statutory residential warranty claims brought pursuant to Minn. Stat. §§ 327A.01 to 327A.08, et. seq.; and b) common law claims arising out of the defective and unsafe condition of the condominium buildings. Continue reading
In D’Allesandro v. Lennar Hingham Holdings, LLC, C.A. No. 17-cv-12567-IT, 2019 U.S. Dist. LEXIS 185874, the United States District Court for the District of Massachusetts recently discussed a case against a general contractor and its related entities, all of whom were involved in the construction of a multi-phase construction project. The court held that, in this context, completion of the “improvement” – which was the whole project, rather than each individual phase – triggered the six-year statute of repose. The court also held that the plaintiffs’ misrepresentation, breach of fiduciary duty and unfair business practices claims were not claims based on the design and construction of the improvement and, thus, were not subject to the statute of repose.
The implied warranty of habitability allows a homeowner to recover damages for latent defects that interfere with the intended use of a home. In Sienna Court Condo. Ass’n v. Champion Aluminum Corp., 2018 IL 122022, 2018 Ill. LEXIS 1244 (2018), the Supreme Court of Illinois held that buyers of new homes cannot assert claims for breach of the implied warranty of habitability against subcontractors involved in the construction of the homes because the subcontractors have no contractual relationship with the homeowners and the damages are purely economic. As the court explained, the implied warranty of habitability is a creature of contract (not tort) and, therefore, only exists when there is contractual privity between the defendants and the homeowners. Continue reading
In Palisades at Fort Lee Condominium Association v. 100 Old Palisade, LLC, et al., 2017 N.J. LEXIS 845 (Palisades), the Supreme Court of New Jersey addressed how the discovery rule – which tolls the statute of limitations – applies in construction defect cases. The court clarified that, when a building has multiple owners, the statute of limitations begins to run when the first owner – be it an original or subsequent owner – in the line of building owners reasonably knew or should have known of the basis for a cause of action.
Many states, including Texas, have Right to Repair statutes that require homeowners to provide notice and an opportunity to repair construction defects to home builders, including contractors who build condominiums. See, e.g. Tex. Prop. Code §§ 27.001 to 27.007. With respect to condominium-related construction defect claims, Texas recently adopted additional procedural requirements that a condominium association with eight or more units must comply with “before filing suit or initiating an arbitration proceeding to resolve a claim pertaining to the construction or design of a unit or the common elements” of a condominium. See Tex. Prop. Code § 82.119 (eff. Sept. 1, 2015). Prior to filing suit or initiating an arbitration proceeding, condominium associations subject to § 82.119 must, among other things: