Florida legislature just amended the rules for making a construction defect claim. Ultimately, a mere 19 words were added to the current rules. However, those 19 words will shorten the timeframe during which an owner can make a claim for construction defects.
Timeframe for Florida construction defect claims is clarified
Butler Weihmuller Katz Craig has a good post on this subject: Lights. Camera. Not an Action? Amendment to Section 558.004, Florida Statutes.
Every state places a time limit on how long a construction business is liable for alleged defects. In Florida, the time limit to make a claim is generally 4 years from when the defect is discovered (or should have been discovered), under Florida’s statute of limitations for defect claims. For latent defects, the deadline (“statute of repose”) is 10 years from the completion of the business’ work. Claims for construction defects must be made during these timeframes – otherwise, they can’t be brought at all. This is true even if the defect isn’t discovered until 10+ years after the project is complete.
This timeframe for making a claim, itself, was not actually amended by the recent Florida legislation. The 4 and 10-year time limits for claims remain intact. However, HB 447 alters how the timeframes will be calculated. And, in practice, each timeframe will be shortened by at least 60-120 days for most projects.
That is, unless the contractor and owner have opted out the construction defect claims process. If that’s the case, this amendment won’t affect the project – and the 4 and 10-year deadlines are really all that matters.
Basics of the Florida construction defect claims process
Before filing a lawsuit for construction defects, Florida property owners have to serve written notice of their claim at least 60 days before the suit will be filed (unless the owner and contractor opted out). For claims being brought by an association with 20+ parcels, like a condo association, this timeframe is extended to 120 days.
In either case – once this notice is sent, the construction business who allegedly provided defective work will have a chance to inspect the issue and will have a right to cure.
What will change?
In Florida, a claim for construction defects must generally be made within 4 years ( 10 years for latent construction defects). This provides a hard stop and limits liability for construction businesses. If the work was done more than 10 years ago, no claim can be made.
However, what exactly constitutes a “claim” hasn’t always been crystal clear. In Gindel v. Centex Homes, a Florida appellate court found that merely sending a notice of a claim for defective work (pursuant to Fla. Stat. 558.004) was enough to establish a “claim” and sneak under the 4 or 10-year deadline. Apparently, the Florida legislature didn’t like that. They quickly turned around and amended 558.004 less than a year later.
Come July 1, 2019, merely sending a notice of claim for defective work won’t be enough to fall within these time limits. Rather, a lawsuit must be filed, or a demand for arbitration must be made (if applicable), in order to abide by the statutes of limitation and repose.
Let’s put all of the above ideas together to clarify exactly what changes with the amendment described above. Again – if an owner and contractor have opted out of the process, notice requirements don’t apply.
In Florida, before a lawsuit can be brought for latent defects in construction work (or before arbitration can be demanded for that defective work) a property owner must give notice to the construction business. Typically, this notice must be made 60 days before filing suit, but the timeframe is extended when the claim is being brought by an association with 20+ parcels (like a condo association).
As of July 1, 2019, property owners must keep the pre-suit notice deadline in mind, in addition to the deadline for making a claim. Otherwise, the property owner may be out of luck. So now, the real “deadline” to initiate the claim process is shortened by about 2 months (or by 4 months, for jobs with 20+ parcels). Whereas, before, mere notice of claim was enough to sneak under the deadline.