In the recent case of Lakeview Reserve Homeowners v. Maronda Homes, 48 So. 3d 902 (Fla. 5th DCA 2010), Florida’s 5th District Court of Appeal found that a homeowner’s association had a claim for breach of common law implied warranties of fitness and merchantability against a builder/developer for defects in the roadways, drainage systems, retention ponds and underground pipes. The Fifth District found that these items immediately supported the homes by making them "habitable, and so, fit for its intended purpose."
In reaching this decision, the Fifth District certified conflict with the Fourth District’s 1985 opinion of Port Sewall Harbor & Tennis Club Owners, Association, Inc. v. First Federal Savings and Loan Association of Martin County, 463 So. 2d 530 (Fla. 4th DCA 1985). The Port Sewall case relied on the Florida Supreme Court’s prior decision in Conklin v. Hurley, 428 So. 2d 654 (Fla. 1983), which the Fifth District distinguished.
In light of the conflict between the appellate districts, the Florida Supreme Court has accepted the Lakevie Reserve case for review. In accepting the case for review it is expected that the Supreme Court will resolve the conflict one way or the other. It should be a very interesting case for those developing or living in homeowner’s associations and one with broad implications as to the scope of these implied warranties.