By Michael J. Gelfand, Esq. / Published Nov 2015
What happens when you make an oral promise, not in writing? Are the spoken words “in air” an enforceable contract? Surprisingly to many, frequently the answer is yes! However, as the following shows, not having it in writing may be short sighted.
In a recent decision that could easily apply to a Florida community association, a Florida appellate court held that an oral agreement to replace windows and issue a new window warranty was an enforceable contract. In Loper v Weather Shield Manufacturing, Inc., 40 Fla. L. Weekly D 1492 (Fla. 1st DCA, June 24, 2015), the homeowner constructed an oceanfront home in 2001. Large windows made by Weather Shield Manufacturing, Inc. were installed throughout the home. Though the builder tried to fix the windows, condensation continued, and then the leaks damaged the interior of the home.
In a meeting, the homeowner said he wanted Weather Shield to replace the defective windows and to issue a new, written ten-year warranty. Weather Shield responded stating orally “we have a deal.” Because the homeowner was under the impression there was an agreement, he did not hire an attorney to sue under the existing warranty. Nonetheless, the homeowner received an e-mail stating that “Weather Shield will not extend the warranty on your product.” The homeowner sued Weather Shield for breach of an oral contract and fraud, alleging that Weather Shield breached their oral agreement by refusing to replace the defective windows and failing to issue a new warranty.
At trial, the jury returned a verdict for the homeowner in the amount of $126,816.25, which reflected the amount the homeowner paid to replace the defective windows and the damage to the interior of the home. The trial court, however, disagreed and set aside the jury verdict.
The Florida appellate court reversed the decision of the trial court and ordered the jury verdict reinstated for the homeowner. First, the appellate court ruled that the trial court erred in concluding that there was no oral contract. The court commented that the parties exchanged promises, including the owner not proceeding with the legal route. As the appellate court explained, “refraining from enforcing a legal right, as [the homeowner] did here by not suing under the existing warranty, constitutes valid consideration for a contract.”
Second, the appellate court separately determined that the oral statements were an enforceable contract. Though the “Statute of Frauds,” requires that certain contracts be in writing, if to be performed in more than over one year, and, though the agreement required the issuance of a ten-year warranty on the replaced windows, the sought after warranty could easily be issued within one year.
This decision is important to Florida communities for at least two reasons. First, it shows that what you say can become an enforceable contract without any writing. Second to avoid lawsuits like this, even if you are right, it is generally a good idea to put into writing agreements so as to avoid a “he said–she said” dispute, which can lead to litigation. When dealing with contractors and others who perform work for an association, take care when communicating not just in writing, but also orally, and e-mail too!
Ever tempted to be “cute” with an owner who requests records? A recent Florida appellate court decision shows what happens when getting “cute,” providing guidance to all subject to open records laws including Florida community associations. In Lakeshore Hospital
Authority v. Lilker, 40 Fla. L. Weekly D 1567 (Fla. 1st DCA, July 8, 2015), Lilker sued Lakeshore Hospital Authority for violating the Public Records Act by placing unreasonable restrictions on access to the records.
Lilker claimed that the hospital referred him to a website when he requested paper copies and that the hospital restricted the right of inspection to the hours of 8:30–9:30 a.m., Monday through Friday. You read it right, only one hour, and first thing in the morning! The trial court granted judgment for the Plaintiff.
The District Court of Appeal affirmed the trial court decision for Lilker. For Lilker, the court explained that the Public Records Act authorizes the inspection and copying of public records at “any reasonable time.” “While the custodian may reasonably restrict inspection to those hours during which his or her office is open to the public, appellants have gone much further by limiting appellee’s access to a single hour on weekday mornings,” the court stated.
“Clearly, this hampered appellee’s right to inspect the records in appellant’s custody ‘at any reasonable time.’”
Although Florida associations are not public agencies subject to the Public Records Act, Florida associations do have to comply with statutory access to records requirements. Therefore, the reasoning, though perhaps not the specifics of this decision may be applied to associations. Thus, it is important to be reasonable when providing access to records.