Florida is the fastest-growing state in America, and there has been a surge in construction. For example, the Sarasota-Bradenton area is seeing a dramatic increase in construction with master plan communities like Lakewood Ranch, various condominiums and the new SOTA Residences & Hotel.   But when there is a boom in construction, there is also an increased risk of potential pitfalls and construction defects – and over the last 10 years there has been steady growth in construction defect litigation in Florida. Florida Statute Section 553.84 allows owners to hold contractors accountable for shoddy construction that fails to meet the state's building code requirements. For condominium and homeowner associations, the Florida Legislature provided community associations with a right to act as a class representative in litigation, which includes causes of action for construction defects. This begs the question: What is a construction defect? Florida Statute Section 558.002 provides the definition of “construction defect,” and it ranges from issues like using defective materials or products to violating the applicable building codes that were in effect during the time of construction.

The deadly June 2021 collapse of the Champlain Towers South condominium in Surfside has raised awareness about the need for stricter building and inspection standards across Florida.

Many common defects in Florida condominiums stem from poor waterproofing, which protects buildings from the Florida rain. Other water-related defects that can be found in high-rise condominiums and other structures include:

• Water intrusion through windows and sliding glass doors.

• Improper waterproofing of balconies.

• Leaks from elevated resort-style pool decks.

These defects drastically decrease the life expectancy of the buildings and reduce the value of the investments made by residents. They may also cause structural problems that result in costly repairs.

A new condominium project looks beautiful – but what lies beneath should be the concern and focus of all associations. The turnover of control of a condominium from the developer to the owners is not merely a passing of a board position. It also entails the transfer of great responsibilities to the board members, who have fiduciary and statutory duties to the owners to maintain the common elements of the association.

The board members take on the responsibility of maintaining complex systems, which they typically have not seen and require significant capital to sustain or, even worse, replace. Though some symptoms of construction defects may be apparent – water intrusion, mold, cracking stucco – others may not manifest themselves for years, at which time it is too late for the association to seek recovery from the liable parties.

It is vital for boards to work with appropriate professionals to investigate the condition of the building components and ensure that condominium developers have delivered their buildings in good condition – free of defects, deficiencies and code violations.

Typically, the best team to assemble is a construction defect law firm that can direct you to the proper experts to perform a building investigation. Ideally, this means bringing in a forensic engineer who can walk through and extensively review the site – all while keeping a trained eye on the building components to identify anything that may require further investigation.

If any issues are found, the next step calls for the forensic engineer to direct an invasive investigation of the building. Through this process, the engineer can investigate the construction of the building at various locations in a "peel the onion" fashion to see how each trade performed its work and identify any defective construction.

It is imperative that boards do not try to take on this task alone. And it is also imperative that they don't delay in addressing potential construction defects that have been identified – it is a critical step in protecting both the boards and the owners they represent.