The Florida Condominium Act Provides Warranty of Fitness and Merchantability

Posted on: October 3, 2013

The Port Marina Condominium Association, Inc. v. Roof Services, Inc., 4D12-3693 (Fla. 4th DCA 2013):

The Florida Condominium Act provides for a warranty of fitness and merchantability as to work provided by contractors and materials provided by suppliers for condo developments, but not as to the manufacture of construction materials. Port Marina filed a complaint, seeking relief from GAF Materials Corporation under Florida’s Condominium Act. The trial court dismissed Port Marina’s complaint against GAF for failure to sufficiently allege that GAF was a supplier.

Port Marina noticed leaks in the roof of its boat storage building and contacted Best Roofing for repairs. Best Roofing advised Port Marina that failure of TOPCOAT product caused the roof leaks. Port Marina then contacted GAF. The GAF representative informed Port Marina that the application of TOPCOAT and not the product itself caused the roof defects. GAF would not accept responsibility for the roof failure.

The essential elements of a cause of action under Florida Statute section 718.203(2) are: (1) the defendant is a supplier of materials to a condominium; (2) the materials failed to conform to the generally accepted standards of merchantability applicable to goods of that kind, or the materials failed to conform to the requirements specified in the contract; and (3) the failure of the goods to conform was a proximate cause of the plaintiff’s damages. Port Marina did not sufficiently allege that GAF was a supplier of materials. The complaint did not contain any allegations that GAF furnished, sold, or delivered anything to Port Marina. Merely pleading that GAF owed a duty to exercise reasonable care in supplying TOPCOAT was insufficient to establish that GAF was in fact a supplier. The Fourth District affirmed the order granting GAF’s motion to dismiss.

Additionally, Port Marina requested leave to amend in a motion for rehearing. The Fourth District reversed the trial court because Port Marina should have been granted leave to amend to more clearly allege that GAF was a supplier within the meaning of section 718.203(2). Port Marina had not abused its privilege to amend, as this was the first time that it requested leave to amend.