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Florida Construction Law News

10APR 2012

An Alleged Breach of a Promise to Deliver a Completed Condominium Is Measured From the Date of Filing A Surveyor’s Certificate of Substantial Completion, Not the Certificate of Occupancy

by George Truitt, Jr., Esq.

Developers must take precaution when making promises regarding completion of construction, especially in light of new Florida case law holding that a claim against a developer for breach of promise to deliver a completed condominium is measured from the date of filing a surveyor’s certificate of substantial completion and not the certificate of occupancy.

In Tranquil Harbour Dev., LLC v. BBT, LLC, 79 So. 3d 84 (Fla. 1st DCA 2011), reh’g denied(Feb. 13, 2012), the parties to a purchase agreement disputed whether the developer kept its promise to deliver the completed condominium unit within two years.  The First District held it was legal error to use the date on which a Certificate of Occupancy was issued to determine if an alleged promise to complete construction within two years was properly achieved.  Instead, “the recording of the surveyor’s certificate of substantial completion was the relevant event” for measuring compliance with an alleged two year promise to complete construction because, under Fla. Stat. § 718.104(4)(e), a surveyor’s certificate of substantial completion must be recorded before a condominium’s “[c]ompleted units . . . may be conveyed to purchasers.”  The Court deemed the word “convey” as a synonym of “deliver” and thus the Court determined that, as a matter of law, the developer was not able to deliver the completed unit until the surveyor’s certificate of substantial completion was recorded.

This case helps clarify how to evaluate compliance with contractual promises to complete construction.  The benefit of such clarity is that it helps evaluate the value, or lack thereof, of claims that relate to promises to complete construction within a certain time.

Posted By George Truitt, Jr., Esq.

George R. Truitt, Jr., is the Managing Partner of the Cole, Scott & Kissane, P.A.’s (“CSK’s”) Construction Group, which is dedicated exclusively to the counseling and litigation of construction-related matters. Mr. Truitt is a Board Certified Specialist in Construction Law. He was admitted to the Florida Bar in 1992 and has been A-V Rated by Martindale Hubbell since 1998. For the past seventeen years, he has devoted his practice to construction litigation and risk management counseling, including the representation of design professionals in professional liability claims, developers, contractors, and subcontractors in construction defect, contract, and lien enforcement claims, and payment and performance bond sureties in public and private bond and subrogation claims.