David v. B & J Holding Corp.

• Decision Date: 09 August 1977
• Docket Number: No. 75-1118,75-1118
• Citation: 349 So.2d 676
• Parties: George DAVID and Lili David, Appellants, v. B & J HOLDING CORPORATION, a Florida Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 676

349 So.2d 676

George DAVID and Lili David, Appellants, v. B & J HOLDING CORPORATION, a Florida Corporation, Appellee.

No. 75-1118.

District Court of Appeal of Florida, Third District.

Aug. 9, 1977.

Rehearing Denied Sept. 14, 1977.

Zinn & Reinhard, Miami, for appellants.

L. J. Cushman, Miami, for appellee.

Before PEARSON, BARKDULL and HAVERFIELD, JJ.

REVISED OPINION

HAVERFIELD, Judge.

Plaintiffs seek review of that portion of a final judgment finding they failed to prove the material allegations seeking damages for breach of implied warranty for the defendant's failure to construct their condominium unit in accordance with the building plans.

Plaintiff-appellants, George and Lili David, purchased from the defendant developer-builder, B & J Holding Corporation, appellee herein, unit # 7-B in the Stuart House Condominium located in the Town of Bay Harbor Islands. After taking occupancy of their unit, plaintiffs discovered several defects, including the failure of the defendant to include proper sound proofing and insulation in the party walls according to the building plans recorded and approved with the Town of Bay Harbor Islands. Plaintiffs pursuant to the receipt, acceptance and warranty agreement made timely written complaints to the defendant concerning the defects and after the adjoining units became occupied informed the defendant of the fact that either so little or no wall insulation was used that they could literally hear every word spoken and sound made by their neighbors in the adjacent units. Defendant failed to remedy these defects and plaintiffs filed the instant suit for damages alleging, inter alia, a breach of implied warranty for the failure to construct the party walls as specified in the building plans recorded with and approved by the municipal building and zoning department. After a non-jury trial, the judge found that the purchase agreement not being a contract for the construction of the Stuart House Condominium, but rather a contract for purchase of a condominium unit, and defendant not having entered into an agreement to build plaintiffs a unit in the Stuart House in accordance with the plans approved by the building department no implied warranty of fitness or merchantability obligated defendant to construct the building in accordance with these plans or any specific plans. Thereupon, the court held plaintiffs were not entitled to any relief sought with respect to this issue.

Plaintiffs contend that the trial court erred in failing to grant them damages for breach of implied warranty when the evidence clearly established that their condominium unit was not built in accordance with the plans and specifications as filed with and approved by the Town of Bay Harbor Islands. We agree.

The modern rule which has developed over the past decade is that implied warranties of fitness and merchantability do extend to the purchasers of new homes and new condominium units and likewise liability has been predicated upon the breach of the building contract in the form of deviation from specifications, such deviation resulting in a defective condition. See Annot., 50 A.L.R.3d 1071 (1973). Being a progressive state particularly in the area of condominium law with respect to protection of purchasers of such units, Florida as with the sale of other commodities has adopted the rule of law that implied warranties of fitness and merchantability extend to the purchase of new condominium units from builder-developers. Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), cert. discharged, 264 So.2d 418 (Fla.1972); Burger v. Hector, 278 So.2d 636 (Fla. 1st DCA 1973); Forte Towers South, Inc. v. Hill York Sales Corp., 312 So.2d 512 (Fla. 3d DCA 1975). As the court explained in Ga...