Implied Warranties and Latent Defects

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Lakeview Reserve HOA v. Maronda Homes, 2010 WL 4257559 (Fla. 5th DCA), Case No. 5D09-1146 filed on October 29, 2010: Summary Judgment entered for developer pursuant to Conklin v. Hurley, 428 So.2d 654 (Fla. 1983) and Port Sewell v. First Federal, 463 So.2d 530 (Fla. 4th DCA 1985), was REVERSED on HOA’s complaint for breach of implied warranties for fitness and merchantability based on latent defects in subdivision common improvements consisting of roads, retention ponds, underground pipes and drainage systems.  The Court determined that there was a certified conflict, while distinguishing Conklin on the facts (investor purchaser of vacate lots unsuccessfully sued developer for defects in abutting seawall based on buyer’s “equal bargaining power,” opportunity for competent inspection, and improvements did not “immediately support the residence”).  In this case, the Court found that for the purpose of liability of implied warranties, “support” could mean physical support (as with the seawall in Conklin) as well as “services essential to the habitability of the residence.”

Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333
http://www.glennrasmussen.com

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