Michael N. Kreitzer and Brandon P. Rose | Homebuilder Legal | April 6, 2015
The Florida Senate is following a recent national trend of tightening its laws governing construction defect claims. Currently, under FL. Stat. § 558.004, entitled Notice and Opportunity to Repair, a party claiming a construction defect must serve a notice of claim upon the party whom they have contracted with to perform work. To date, the notices of claim only require “reasonable detail sufficient to determine the general nature of each alleged defect and a description of the damage or loss resulting from the defect, if known.” However, the days of these relaxed requirements may be nearing an end.
Under the proposed legislation, Senate Bill No. 418, the Florida Senate sends a clear message: specificity is key. The amended statute contains additional language that would require a claimant to:
identify the specific location of each alleged construction defect to enable the responding parties to locate all of the alleged construction defects without undue burden. The notice of claim must also identify the specific provisions of the building code, project plans, project drawings, project specifications, or other documentation, information or authority that serve as the basis of the claim for each alleged construction defect. SB No. 418, FL. Stat. § 558.004(1)(b).
Failure to provide this information would constitute “prima facie evidence of a defective notice of claim.” Id.
Additionally, the proposed legislation now provides for monetary sanctions when:
- the claimant proceeds with an action that includes any claims previously resolved by the payment of money, making repairs, or a combination of the two; or
- the claimant or its attorney knew or should have known that the alleged construction defects identified in the notice of claim were caused solely by the claimant or its agents, or would not be supported by the application of then existing law. SB No. 418, FL. Stat. § 558.004(8) & (16).
Many may argue that the proposed legislation is, in gentle terms, “builder-friendly.” Regardless of its categorization, property owners and builders alike should closely follow the bill’s status. With tighter requirements and availabilities of sanctions, builders would possess additional ammunition to combat construction defect claims. Contrarily, by meeting the new requirements under the proposed bill, property owners’ construction defect claims will likely stand on firmer grounds, supported by a wealth of evidence. Nevertheless, of one fact we can be certain—with the booming resurgence of construction in Florida, and particularly in South Florida, the proposed legislation would shake-up construction defect litigation for years to come.