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On Behalf of | Feb 24, 2022 | Firm News

Construction Defect law is codified in Florida law under Statute Chapter 558. Below is a brief summary of the more salient aspects or those which frequently arise during a claim for defective design or construction defect:

What Are Construction Defects

558.002(5) – “Construction defect” “Construction defect” means a deficiency in, or a deficiency arising out of, the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of real property resulting from:

(a) Defective material, products, or components used in the construction or remodeling;
(b) A violation of the applicable codes which gives rise to a cause of action under 553.84;
(c) A failure of the design to meet the applicable professional standards of care; or
(d) A failure to construct or remodel in accordance with accepted trade standards for good and workmanlike construction at the time of construction.

What Property Applies

558.002(8) – “Real property” or “property” means land that is improved and the improvements on such land, including fixtures, manufactured housing, or mobile homes.

What Qualifies as Service of Notice

558.002(9) – “Service” means delivery by certified mail with a United States Postal Service record of evidence of delivery or attempted delivery to the last known address of the addressee, by hand delivery, or by delivery by any courier with written evidence of delivery.

When is Notice Required

558.003 – Notice is required before an Owner can file suit for construction defect; however, notice is not required for projects not yet completed

Notice Content and Party Requirements

558.004(1a) –  Notice is required 60 days prior to filing of suit or action involving an association representing more than 20 parcels and must specifically reference Chapter 558, Florida Statutes. A written copy must be served on the contractor, subcontractor, supplier, or design professional, specifically on the person with whom the claimant contracted where applicable. “Contractor” includes “those ‘legally engaged’ in the business of designing, developing, constructing, manufacturing, repairing or remodeling dwellings and any attachments thereto.”

* re-noticing with additional information or parties will restart the proverbial clock.

558.004(1b) – The Notice must describe in reasonable detail the nature of each alleged construction defect and the conspicuous damage or loss resulting from the defect. The Notice must also identify the location of each alleged construction defect sufficiently to enable the responding parties to locate the alleged defect without undue burden. The claimant has no obligation to perform destructive or other testing for purposes of this notice.

General Timeline Requirements

558.004(2) – Within 30 days of the Notice, the noticed party has the right to demand reasonable access to inspect.

558.004(3) –    Within 10 days of the Notice, the noticed party may serve a copy of the notice on subcontractors, suppliers, or design professionals whom it reasonably believes is responsible for each defect specified in the Notice and shall note the specific defect for which it believes the particular contractor, subcontractor, supplier, or design professional is responsible.

558.004(5) –    Within 45 days of the Notice, the noticed party must serve written reply with inspection results (if any) and:

(5a) – Offer to remedy at no cost with timetable; or
(5b) – Offer of monetary recompense; or
(5c) – Combination of repairs and money; or
(5d) – A written statement of denial/dispute; or
(5e) – Offer for submission to Contractor’s insurer for determination of coverage.
558.004(6) –    Owner may file suit after compliance with 558 requirements and deadlines or after no action following original notice of claim.
558.004(7) –    If written 558.004(5) offer is made by the noticed party, Owner must serve written acceptance or denial of offer within 45 days of receipt.

558.004(10) – Statute of Limitations tolled for 90 days from service of notice or for 30 days from completion of any repairs by the noticed party, whichever is later.

Document Production Guidelines

558.004(15) – Upon request, the claimant and any person served with notice pursuant to subsection (1) shall exchange, within 30 days after service of a written request:

  • any design plans, specifications, and as-built plans;
  • photographs and videos of the alleged construction defect identified in the notice of claim;
  • expert reports that describe any defect upon which the claim is made;
  • subcontracts;
  • purchase orders for the work that is claimed defective or any part of such materials;
  • and maintenance records and other documents related to the discovery, investigation, causation, and extent of the alleged defect identified in the notice of claim and any resulting damages.

The request must cite this subsection and include an offer to pay the reasonable costs of reproduction.
A party may assert any claim of privilege.

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In the event of subsequent litigation, any party who failed to provide the requested materials shall be subject to such sanctions as the court may impose for a discovery violation.

Expert reports exchanged between the parties may not be used in any subsequent litigation for any purpose, unless the expert, or a person affiliated with the expert, testifies as a witness or the report is used or relied upon by an expert who testifies on behalf of the party for whom the report was prepared.