Who pays for an association's construction defect lawsuit?

It depends on the fee arrangement. Association defect claims may be handled on a contingency or hybrid basis, so legal fees come out of any recovery rather than monthly assessments. Costs such as engineering inspections and testing are typically advanced from association funds or, in some arrangements, by the law firm and reimbursed from the recovery. Get the structure in writing before the board signs an engagement.

Can individual unit owners join the association's lawsuit?

The association sues over the common elements and common areas; it does not automatically pursue damage inside individual units. Owners with unit-specific defects can bring their own claims, and those claims face the same four-year limitations period and seven-year repose deadline. Coordinating the association's case and any owner claims early avoids missed deadlines and inconsistent positions.

What if the developer dissolved its LLC after the project?

Dissolution is common and usually not the end of the claim. A dissolved entity can often still be sued, and recovery frequently comes from the insurance policies that covered the project. Claims may also lie directly against the general contractor, subcontractors, and design professionals who performed the defective work. It does make early investigation more important, because tracing the responsible parties and their insurers takes time.

Does the board need a membership vote before suing the developer?

Often, yes. Many declarations and bylaws require a membership vote before the board commits the association to litigation beyond routine matters. Review the governing documents before filing, and start the vote process early. The statute of limitations and the seven-year repose period keep running while the vote is organized.

Can an HOA Sue the Developer for Construction Defects?

Written and reviewed by Cory Cannon, Esq.

Published July 12, 2026 Updated September 5, 2026

Yes. Florida law gives both condominium associations and homeowners’ associations standing (the legal right) to sue the developer for construction defects in the association’s own name, on behalf of all owners, once the owners control the board.

That settles the threshold question. The harder questions are which claims fit your defects and how much time is left. Both turn on turnover (the moment the developer hands control of the association to the owners) because by then the legal clocks are usually already running.

Where the Right to Sue Comes From

For condominiums, section 718.111(3), Florida Statutes, authorizes the association to bring actions on matters of common interest to most or all unit owners: the common elements, the roof and structural components, the mechanical, electrical, and plumbing systems, and the developer’s representations. For homeowners’ associations, section 720.303 grants the same power over the common areas and improvements the association is responsible for, once members other than the developer control the board.

The Claims Associations Typically Bring

Statutory implied warranties (condominiums). Under section 718.203, the developer, contractor, and subcontractors are deemed to grant implied warranties of fitness and merchantability covering the units, the roof and structural components, and the mechanical, electrical, and plumbing elements of the building.
Building-code violations. Section 553.84 creates a civil action for damages caused by violations of the Florida Building Code. It is available to condominium associations and HOAs alike.
Negligence and breach of contract against the developer, the general contractor, subcontractors, and design professionals responsible for the defective work.

One caution for HOAs: implied-warranty claims are narrower outside the condominium context. Section 553.835 bars implied-warranty claims for offsite improvements (streets, sidewalks, drainage, and utilities not located on or under the lot) outright, and also for on-lot improvements that do not immediately and directly support the home’s fitness and habitability. The statute preserves contract, tort, and statutory claims for those improvements. HOA cases therefore tend to rest on building-code and negligence theories.

The Deadlines Control Everything

Under section 95.11(3)(b) (renumbered from the former section 95.11(3)(c) by 2023 legislation), a construction defect action must be filed within four years, running from the earliest of the temporary certificate of occupancy, the certificate of occupancy, the certificate of completion, or abandonment of construction. For a latent defect (one hidden from view, like missing flashing behind stucco) the four years runs from when the defect was discovered or should have been discovered with due diligence.

There is also a hard outer limit called the statute of repose. Since the 2023 amendments in Senate Bill 360, every defect action must be filed within seven years of that same earliest date. The repose period does not wait for discovery; when it expires, the claim is gone regardless of when the defect appeared. Because turnover often happens years after the buildings were completed, a new board can inherit a window that is already short. Calendar these dates first, and confirm them with counsel: the trigger dates are building-specific.

What a Board Should Do After Turnover

Get an independent engineering inspection. We retain independent licensed engineers to inspect and document conditions before repairs or repainting erase the evidence.
Assemble the turnover file. The turnover inspection report, plans, permits, warranties, and reserve study establish what the developer delivered. Recent milestone-inspection or structural integrity reserve study reports can flag problems as well.
Check the governing documents for vote requirements. Many declarations require a membership vote before the board files certain lawsuits. Deadlines keep running while a vote is organized, so start early.
Serve the chapter 558 notice. Florida requires written pre-suit notice of the defects: at least 120 days before filing for an association representing more than 20 parcels, and at least 60 days otherwise. The recipient may inspect and offer to repair or settle. Our chapter 558 guide explains each step.

One distinction to check first: if the damage came from a storm or a sudden failure and the real dispute is with the association’s insurance carrier rather than the developer, that is an insurance claim, not a defect claim. Start with our condo and HOA insurance claim page.

Talk to Us Before the Window Narrows

Cory Cannon handles construction defect claims for associations across Tampa Bay, including balcony and structural defects in condominium buildings. I grew up around construction (generations in the Florida construction trades) and I read plans, permits, and engineering reports line by line. If your board is weighing a claim against the developer, our condo and HOA defect attorney page explains how we represent associations, and our resource library has more guides. Contact us for a free consultation.