CLASS ACTION CERTIFICATION BY ASSOCIATION FOR “MATTERS OF COMMON INTEREST”

Associations have authority to pursue as a class, on behalf of all of their respective members, lawsuits “concerning members of common interest to the members.”  Fla. R. Civ. P. 1.221.   This includes, but is not limited to, the common property or the areas in which the association is responsible.   But, what about matters or elements for which the association is not responsible or does not own?  For example, issues or damages relative to a specific unit or owner that are prevalent throughout?

The Third District Court of Appeal addressed this question in Allied Tube and Conduit Corp. v. Latitude on the River Condominium Association, Inc., 45 Fla. L. Weekly D1518a (Fla. 3d DCA 2020) when in affirmed a class certification by a condominium association relating to the removal and replacement of the condominium building’s defective fire sprinkler system.    In affirming the class certification by the condominium association, the Third District maintained:

Rule 1.221 expressly authorizes condominium associations to “institute, maintain, settle, or appeal actions or hearings in its name on behalf of all association members concerning matters of common interest to the members.” “[A]s to controversies affecting the matters of common interest . . ., the condominium association, without more, should be construed to represent the class composed of its members as a matter of law.”  “[T]he common interest provision of the rule has been interpreted to permit a class action by the association for a construction defect located physically within a unit, rather than in the common elements, if the defect is prevalent throughout the building.”  We, therefore, cannot say the trial court abused its discretion in finding that damages resulting from the replacement of the fire-sprinkler system throughout the building were a matter of common interest for purposes of certification at this stage of the litigation.

Allied Tube and Conduit Corp, supra (internal citations omitted).

Without knowing more, the association was presumably seeking damages that were prevalent throughout the building but may not have been damages owned exclusively by the association.  This is the reason the association was seeking class certification.  It could be damages associated with the removal and replacement of fire sprinkler in individual units.  And, perhaps it is tied to the displacement of unit owners during this work.  Regardless, the association at the class certification hearing established that the defect and damages were prevalent throughout the building and, therefore, a matter of common interest to the association. There is great value in having the association pursue the class on behalf of all of its members opposed to individual unit owners separately suing, where certain owners may not have the economics to pursue such individual lawsuit.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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