One of the most frustrating events for a residential homeowner, or a commercial property owner, is the day that they find construction defects on their property. From that time forward, the steps that are taken by the property owner to preserve all available evidence and claims against the responsible parties are of paramount importance. Florida law has changed through the years as to the type of notice that is required to be given before a property owner can file suit for construction related defects. Often times the crucial steps before a claim can be brought are not known, and thus ignored by the property owner, resulting in claims of spoliation of evidence, and worse yet, potentially resulting in a lower monetary recovery than if all of the proper procedures had been followed.
Understanding Section 558.004
Chapter 558, Florida Statutes, provides the procedure that must be followed for contracts entered into after October 1, 2009, before a lawsuit for construction related defects can be filed. In the event that Chapter 558, Florida Statutes applies, there are several provisions that must be understood.
In particular, section 558.004, Florida Statues, outlines the notice requirements for any construction related claim. For example, at least 60 days before a lawsuit for construction defects can be filed, a property owner must serve a written notice of the defect on the responsible contractor, subcontractor, supplier, or design professional. The notice must describe the claim in reasonable detail sufficient for the party receiving the notice to determine the general nature of each construction defect and a description of the damage or loss resulting from the defect, if it is known. Once the notice is served, the party receiving the notice has 30 days to perform a site inspection of the property to assess each construction defect alleged by the property owner. In turn, the person receiving notice must provide notice to its contractors, subcontractors, or other parties that may be responsible for the defects, so that they may likewise have an opportunity to inspect the property and the defects. To prevent significant disruptions to the property owner, any inspections are to be coordinated, so as to minimize the number of inspections at the property. The statute also addresses a very specific procedure that must be followed if it is determined that destructive testing is necessary to determine the nature, extent, or cause of the defects.
After independently inspecting the property and making its own determination regarding the construction defects, and no later than 45 days after having been served with the notice of claim, the party receiving the notice must serve a written response to the property owner electing one of five courses of action. The responsible party may:
(i) fix the defects at its own cost; or
(ii) pay the property owner a sum of money in full settlement of the claim; or
(iii) offer a mix of repairs and money; or
(iv) turn the claim over to its insurance carrier for payment; or
(v) deny liability and do nothing.
Florida’s statutory framework makes it possible for the property owner to know within 45 days of first providing the required statutory notice, the position of the responsible party, and the next step that the property owner must take to resolve its problem.
Section 558.004, Florida Statutes, has some other important provisions that require particular emphasis. First, in the event that immediate repairs to the property are necessary, the statute does not preclude a property owner from making emergency repairs to protect the health, safety or welfare of the property owner. Second, the statute provides different notice and response time frames for actions involving an association representing more than 20 parcels.
Construction defects can quickly sour the joy of moving into a newly built home. However, when the proper steps are taken, the worry and uncertainty of what may occur can be minimized, and the chances for a successful settlement or recovery, maximized. When faced with construction defects, it is important to contact an attorney familiar with construction law as soon as possible so that any defects are accurately and timely documented and the proper responsible parties are immediately placed on notice of the defects. The date and wording of the construction contract are vital to determining a property owner’s responsibilities under Chapter 558, Florida Statutes. For example, Chapter 558, Florida Statutes, provides that:
(i) parties may contractually opt out of the requirements of Chapter 558, Florida Statutes; and
(ii) different procedures could apply to contracts entered into prior to October 1, 2009. An attorney familiar with the nuances of construction law can greatly assist in determining which sections of Chapter 558, Florida Statutes apply to a particular situation and contract.
Construction defects are more common than most people like to admit. However, knowing and understanding the first steps that need to be taken is the key to the quick and satisfactory resolution of any construction related dispute.