Lee A. Weintraub – December 13, 2011
Chapter 558 Fla. Stats. is Florida’s pre-suit notice and right to cure procedure, which applies before property owners may assert a claim against a developer, contractor, subcontractor or design professional for construction and design defects. It expressly provides for “destructive testing” of the defective areas of the property via written request and mutual agreement.
Destructive testing is often performed to establish or refute the existence of defects. For example, sections of drywall may be removed in order to view water damage within a wall, or stucco may be removed to expose the hidden conditions beneath it.
At a minimum, a developer or contractor’s request for destructive testing should describe: (i) who is performing the testing, (ii) the anticipated testing methods and locations, (iii) the estimated anticipated damage and repairs to or restoration of the property resulting from the testing, (iv) the estimated amount of time necessary for the testing and to complete any repairs or restoration, and (v) who will bear financial responsibility for covering the costs of repairs or restoration. Where the owner has retained any consultants to inspect or document defects, he or she should seek their opinions about the proposed testing and repair methods prior to performing any destructive testing.
While many owners are concerned about the potential damage or disruptions that destructive testing may pose, not agreeing to destructive testing could cost the property owner far more in the long run. Owners who ignore the statutory destructive testing procedures or refuse to comply with them altogether, may be barred from pursuing defects claims that could have been mitigated or even avoided had the destructive testing been allowed. However, taking the time to document the parties’ destructive testing obligations in writing should provide property owners with some measure of comfort in proceeding with destructive testing.
For this reason, property owners should have their attorneys prepare a written agreement prior to the commencement of any destructive testing, setting forth the rights and obligations of all participants. For example, such an agreement may include the anticipated timeframes and locations for testing, identify the mutually agreed upon testing methods and indentify which parties will bear the costs for testing, materials, permits, governmental fees, post-testing repairs, consultants’ fees, security costs and the like.
Among other things, the agreement could require the parties who have requested destructive testing to post a bond, provide proof of workers compensation insurance before any destructive testing begins, and maintain liability insurance coverage throughout the destructive testing process. The destructive testing agreement may require the testing parties to indemnify, hold harmless and defend the property owners from any personal injury or property damage which could be caused by the destructive testing. Additionally, it should describe the testing parties’ duties, if any, to share reports or results of the destructive testing with the property owners.
via What property owners need to know about destructive testing – Lexology.