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.
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