Until not too long ago, if an investor or foreclosing lender acquired seven or more condominium units, there was limited legal authority from the Florida Division of Condominiums to hold that person or company in the shoes of the original developer for all of the construction defect liability and failed financial obligations. Then, along came the 2007 financial crash. Failed condominium projects were everywhere and sophisticated investors knew not to buy seven or more units for fear of tremendous liability for acts in which the investor did not at all participate. Enter, Part VII of the Condominium Act, Chapter 718, Florida Statutes … to the rescue.
In 2010, to solve this crisis, Part VII of the Condominium Act, was passed into law. It is appropriately titled, the “Distressed Condominium Relief Act”. In short, the “Relief Act” allows a mechanism for investors to acquire failed condominium projects and then sell the units at arms length without acquiring the liability of the failed developer for any construction defects and/or assessment funding obligations of the failed developer. However, the acquirer of these bulk units is only labile for their own construction activities. There are even safe guards built into the Relief Act to protect against using it improperly as a shield against liability by prohibiting the bulk transferee from being related to the failed developer.
Before the Relief Act was enacted, and forgetting the “robo-signing” debacle that led to the lender foreclosure delays of an extreme magnitude, lenders were very reluctant to foreclose their failed condominium projects due to their inherent financial liability for construction defects and prior developer funding obligations. But, with the Relief Act springing into law, commerce resumed as failed condominium projects were taken over by sophisticated investors, and lenders saw fit to safely foreclose. Importantly, investors and lenders felt safe to acquire more than seven units from the failed condominium project.
AND THEN…
On February 27, 2013, in The Porto Venezia Condominium Association, Inc., v. WB Fort Lauderdale, the United States District Court for the Southern District of Florida held that a lender who loaned millions of dollars to a developer for construction of a condominium project and who accepted a deed in lieu of foreclosure for the now built, but unsold condominium units, could be liable to purchasers for what are commonly referred to as the Chapter 718.203, Florida Statutes, “statutory implied warranties of habitability” that form the basis of the cause of action against developers for construction defects arising from the original construction of the condominium. In short, the Southern District Court held that “WB” as the successor to the initial lender, “ING Direct, FSB”, was still a “developer” and, as such, could be liable for the activities of the original developer during the forthcoming trial brought by The Porto Venezia Condominium Association.
Interestingly, the trial court had held that WB was not liable as a lender-developer and had held that, “having engaged in no construction itself, it could not be liable for construction defects.” The trial court had also found that, “WB could not be liable under the Florida Building Code because it had not engaged in any construction.” As for negligence, the trial court found that, “because all construction had been completed, WB did not breach any duty, even duties that could arise if a lender took an active part in developing a construction project.” However, in overturning the trial court, the Southern District Court held that, “because the Florida Legislature crafted a broad definition of “developer” that captures both builder-developers and lender-developers, the Court should not have cut away statutory obligations that ride along with entities meeting that definition.” Even the Southern District Court admitted that “it is peculiar to make a lender a guarantor of the construction of others, because Florida law elsewhere is clear that such liability is inappropriate.”
So what does all this mean? It could mean that the Relief Act was not considered as a part of the Southern District Court’s analysis because it did not exist at the time the loan was made and still did not exist when WB took title as a result of its acceptance of a deed in lieu of foreclosure. It could also mean that, because the Southern District Court did not address the lack of applicability of the Relief Act in its written opinion, the WB case could again frighten lenders from lending on new projects and foreclosing failed condominium projects due to the lack of clarity in regard to the lender’s financial liability upon foreclosure of the condominium project. Perhaps the Florida Legislature will see fit to clarify the applicability of the Relief Act to encourage future lending practices.