Suing the developer

I know a TriBeCa loft conversion building that has units selling for millions. It was discovered that the walls were never properly fire-proofed and enough time had gone by and enough turnovers had occurred in the ownership/structure of the developer that suing the present incarnation of the developer was not legally feasible. The result: owners had to vacate by order of the fire department and tear out EVERY wall every apartment and rebuild them to code. The cost? $300K-$500K per unit. OUCH. Buyers of new construction: beware. You can very easily find yourself on your own and reaching deep, deep, deep into your pockets to correct latent deficiencies found years later.

suing the developer should be last resort. The time and money involved and uncertain outcome would argue against it. Try all other alternatives first.

Filing a complaint with the State Attorney General.
At Franklin Tower, the owners did just that. No lawsuit.
RAL, the developer; had to pay a one million dollar restitution to the condo.

I had a leakage problem in a condo that I owned in Cambridge, MA. I called a major engineering firm and they were kind enough to examine my apartment and building at no charge. The engineer informed me that they had to deal with the condo's board of trustees since the repairs involved common areas. I asked the board to fix the problem since besides being unsightly, mold was growing in my apartment. They refused. I had to spend $20,000 in legal expenses to get a judgement stating that they had to fix the problem.

Consequently, I doubt you will be able to fix this problem by yourself without getting the board involved. Ask the board again in writing to fix the problem emphasizing that you want to keep things on a friendly basis and that leakage into an apartment is a health hazard since it may encourage mold growth. If you do not receive a favorable reply from the board, you'll probably have to sue them and/or the developer. I would not delay because time is of the essence. Make sure you videotape and photograph the damaged areas at least once a week and after rainfall (the videos and photographs submitted as evidence impressed the judge hearing my case more than the "expert" witness hired by my lawyer).

Another option is to contact the buildings department for the City of Miami. Try the inspections Department first. http://www.miamigov.com/building/pages/contact_us/contactus.asp
Note that I tried this route first, but my board still did not fix the problem because they did not want to spend the money. So I had to go nuclear with the lawsuit.

You may also want to check with the Attorney General in Florida to see if her office can offer any solutions. http://www.myfloridalegal.com/

Also, although I'm not a lawyer, common sense dictates that if a major flaw is discovered in a building, future purchasers should be notified of the defect since this impacts the market value of the units. If I purchased an apartment in your building and discovered that the board knew about a major defect and did not correct it, and it indeed was hiding the defect, I would sue them in a heartbeat. There is a "standard of livability" and I don't believe water intrusion meets that standard. You may want to mention to the board that they may be exposing themselves to legal liability. Furthermore, potential purchasers who conduct home inspections may uncover this defect. In fact, I'm wondering if it has already been filed with the Miami Buildings Department.

I hope this is resolved with as little pain for you as possible. Stay strong, it's probably going to be a long haul!

wavediva: All good suggestions.
You type faster than I do.

P.S.
The $20,000 in legal fees are in 1988 dollars; your legal costs will probably be much higher.

I found this legal info on the web: "A seller and their agent are required by Florida law to disclose all known defects that could materially affect the value of the house. A seller who withholds valuable information can be held liable for his actions regardless of whether the transaction is conducted "as-is"."
Article Source: http://EzineArticles.com/609365

"In all cases, where a seller actively misrepresents the condition of the property, such as by taking steps to make an inspection impossible or by lying about problems when directly asked, the buyer will almost always succeed unless it can be shown that the buyer was independently aware of the defect and completed the transaction nevertheless."
http://en.wikipedia.org/wiki/Latent_defect

wavedeva: Good links.

@Truth
Thanks! Unfortunately I know how emotionally draining this whole process is so I was trying to be as helpful as possible. Ironically, the head of the board of trustees of my Cambridge, MA condo was a lawyer! He actually apologized to me a couple of years after the lawsuit was settled and we had a great conversation in his apartment. The whole lawsuit situation was a total waste of time and money (although I got my legal fees back by suing the realtor who sold me the apartment, but that's another story).

Path-
If the "serious structural flaw was discovered during an engineering inspection which was conducted as a part of a turnover from the developer to the association." I would expect the association to simply not accept the building until the developer remediated the flaw(s). How would your situation be different ? This sounds like a serious problem that will only get worse over time.

wavedeva: Glad it all worked out for you in the end.
It sure is a waste of time.

Did the board of trustees big-wig serve you some nice coffee in his apt ,at least?

@Truth
It was so long ago I don't remember. I probably had a soft drink or iced tea. I was glad we made peace and that common sense prevailed. It's quite stressful fighting with your neighbors.