Tag Archives: Florida

Florida Shortens Time to File Construction Claims and Imposes Materiality Requirement for Building Code Violations

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Ralf Rodriguez | Cozen O’Connor

On March 24, 2023, and April 13, 2023, Governor Ron DeSantis signed House Bill 837 and Senate Bill 360 into law, respectively. These new legislative amendments change Florida’s litigation landscape by shortening the statute of limitations for general negligence claims and the statute of repose for construction claims and altering the potential triggering events for commencement of the statute of limitations and repose periods. Additionally, the legislation amends the statute governing private causes of action alleging a violation of the building code by imposing a materiality threshold. 

Statute of Limitations for Negligence Claims is Shortened from Four to Two Years

As a result of new legislative amendments, Florida’s statute of limitations for general negligence claims has been reduced from four to two years.1 Prior to this change, the statute of limitations period for filing general negligence claims was four years from the date the cause of action for negligence accrued. However, as of March 24, 2023, a plaintiff alleging a general negligence claim in Florida must now file their claim within two years from the date the cause of action accrues, or the claim will be barred as a matter of law.

Commencement of the Four-Year Statute of Limitations for Construction Defects is Revised

The statute of limitations to file a claim based on the design, planning, or construction of an improvement to real property still remains at four years. However, the triggering event for when that time period commences has changed.2 Under the new legislation, the four-year statute of limitations begins to run from the earliest date, rather than the latest, of the potential triggering events specified in the statute. In addition, the legislation removed two potential triggering events from that list – the date of the owner’s actual possession of the improvement and the date of completion or termination of a contract between certain design professionals and their employers, while adding two new potential triggering events – issuance of the temporary certificate of occupancy, and issuance of the certificate of completion. The statute leaves in place an exception for latent defects, in which case the discovery rule applies, and the four-year statute of limitations period begins to run from the time the defect is discovered or should have been discovered with the exercise of due diligence.

Statute of Repose for Construction Claims is Shortened from Ten Years to Seven Years, and the Potential Triggering Events for Commencement are Revised

The new legislative amendments also reduced the statute of repose for construction claims from ten years to seven years. The amendments also changed the start of the repose period by altering its potential triggering events for when the time to file a claim begins to run on claims based on the design, planning, or construction of an improvement to real property. Similar to the amendments pertaining to the statute of limitations, under the new legislation, the repose period begins to run from the earliest date, rather than the latest, of the potential triggering events specified in the statute, with the same changes to the list of potential triggering events carried over for commencement of the limitations period to the statute of repose.

As a result, a claim arising from the design, planning, or construction of an improvement to real property must now be filed no later than seven years from the earliest triggering event specified in the statute, even if a claim arises from latent or undiscovered defects. Otherwise, the claim is time-barred. Note that the statute of repose works independently from the statute of limitations, cutting off a right of action after the seven-year period regardless of when the cause of action accrues. 

The shortened statutory repose period is anticipated to impact the amount of litigation associated with condominium projects. Specifically, turnover from a developer to a condominium association can occur up to seven years after the date the condominium declaration is recorded.3 Assuming a condominium declaration is recorded on or after any of the triggering events specified in the statute and assuming turnover occurs in the seventh year, the condominium association’s right to assert a construction defect claims may be significantly curtailed if not altogether time-barred.

Specific Carve-Outs for Multi-Building Improvements and Model Homes

Under the new legislation, if the improvements to real property include the design, planning, or construction of multiple buildings, each building is considered its own improvement with respect to calculating the commencement of the statutory periods.

If the improvement to real property is the construction of a single-dwelling residential building used as a model home, the limitations period commences upon the date that a deed is recorded first, transferring title to another party.

Effective Date of Amendments to Fla. Stat. § 95.11

The amendments to the construction defect statute of limitations and statute of repose in Florida apply to all actions that commence on or after April 13, 2023, regardless of when the circumstances giving rise to the cause of action actually occurred or accrued. However, the new legislation provides a grace period for civil actions that have not yet commenced but would have been considered timely prior to the amendment. Those civil actions must be commenced no later than July 1, 2024.

Amendments to Fla. Stat. § 553.84 Limit the Right To Recover for Material Violations of the Florida Building Code

Section 553.84 provides a private right of action to persons who are damaged as a result of violations of the Florida Building Code. This section is amended by the new legislation to limit recovery for material violations of the Florida Building Code. The new legislation also amends the statute to include a definition of material violation, meaning a violation “that exists within a completed building, structure, or facility which may reasonably result, or has resulted, in physical harm to a person or significant damage to the performance of a building or its systems.” This amendment notably eliminates any claims for technical violations which caused no damage to an individual or to the performance of the building or its systems and eliminates claims for code violations associated with an incomplete building, structure, or facility.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Filing Motion to Increase Lien Transfer Bond (Before Trial Court Loses Jurisdiction Over Final Judgment)

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David Adelstein | Florida Construction Legal Updates

If a construction lien is recorded against real property, the lien can be transferred to a lien transfer bond.  This transfers the security or collateral of the construction lien from the real property to the lien transfer bond. The lien transfer bond can be a bond posted by a surety company or it can be cash.  This is governed by Florida Statute s. 713.24.  The amount of the lien does not dictate the amount of the lien transfer bond.  Rather, the lien transfer bond needs to be in the amount of the lien, plus interest on that amount for three years, plus $1,000 or 25% of the amount of the lien (whichever is greater so factor in the 25%) to cover attorney’s fees. Fla. Stat. 713.24(1).

If you are looking to transfer a construction lien to a lien transfer bond, make sure to consult with counsel.

Keep in mind there is a statutory mechanism for a lienor to increase the lien transfer bond to cover attorney’s fees and costs and notice the word “must” in the statute below. Pursuant to Florida Statute s. 713.24(3):

Any party having an interest in such security or the property from which the lien was transferred may at any time, and any number of times, file a complaint in chancery in the circuit court of the county where such security is deposited, or file a motion in a pending action to enforce a lien, for an order to require additional security, reduction of security, change or substitution of sureties, payment of discharge thereof, or any other matter affecting said security. If the court finds that the amount of the deposit or bond in excess of the amount claimed in the claim of lien is insufficient to pay the lienor’s attorney’s fees and court costs incurred in the action to enforce the lien, the court must increase the amount of the cash deposit or lien transfer bond. Nothing in this section shall be construed to vest exclusive jurisdiction in the circuit courts over transfer bond claims for nonpayment of an amount within the monetary jurisdiction of the county courts.

In a recent case, Edmondson v. Tri-County Electrical Services, Inc., 2023 WL 2995420 (Fla. 4th DCA 2023), a lien was transferred to a cash bond by the real property owner.  The contractor-lienor moved to have the court increase the amount of the cash security to better cover attorney’s fees and costs accrued in the litigation. The court deferred ruling on the motion. Subsequently, the court had a bench trial and the contractor prevailed. The court entered final judgment in favor of the contractor and reserved ruling on attorney’s fees, interest, and court costs. The court thereafter entered an amended final judgment that included attorney’s fees, interest, and court costs.  The court then conducted a hearing to increase the cash bond and granted the contractor’s motion for the cash bond to be increased.  The issue was that the court no longer had jurisdiction to require the owner to increase the cash bond:

The action here was not ‘pending’ under section 713.24(3). The general rule is that an action remains pending in the trial court until after a final judgment and such time as an appeal is taken or time for an appeal expires. By the time the trial court had ruled on the motion to increase the bond, the time for an appeal had passed. Therefore, because the matter was no longer pending, the trial court lacked authority to consider the motion.

The trial court was without jurisdiction to grant Contractor’s motion to increase the bond.

Edmondson, supra, at *2 (internal citations omitted).

Here, the contractor should have requested the trial court rule on the deferred motion to increase the cash bond BEFORE the amended final judgment was entered. Or, at a minimum, the contractor should have timely filed a motion for rehearing as to the amended final judgment to address this deferred motion to increase the cash bond. Once the rehearing period expired, “the trial court no longer has jurisdiction over a final judgment.” Edmondson, supra, at *1 (“Contractor did not file a timely motion for rehearing, which would have been the time to raise the bond increase issue.”). Id.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Florida Legislature Enacts Major Changes to the Statute of Repose for Construction Defect Claims

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Cesar Avila and Kellyt Melchiondo | Bilzin Sumberg

On April 13, 2023, governor Ron DeSantis signed Senate Bill 360 (“SB 360”) into law, which drastically reduces the time limit for property owners to file suit against builders and construction professionals for construction defects and imposes a more stringent standard for bringing a claim under the Florida Building Code. The statute now clearly identifies the triggering event for when the clock begins ticking on the statute of repose, rather than leaving it to courts to identify (and disagree upon) it. We examine here the history of Florida’s construction statute of repose, and how this new, bright-line law will affect Florida’s construction and real estate industries. 

Statutes of Limitation and Repose

In Florida, plaintiffs must bring construction defect claims within the time limits prescribed by the statute of limitations and statute of repose, which are both governed by §95.11(3)(c), Fla. Stat. While there may typically be exceptions to the statutes of limitations, the statute of repose is the absolute last date on which a property owner can sue a builder or construction professional. Failure to file suit before the running of the statute of repose constitutes a waiver of such claims. 

Changes to Time Limits and Triggering Events

Without question, SB 360’s most impactful change is the reduction of the statute of repose from 10 years to seven. By substantially shortening the statute of repose, SB 360 reinforces the Florida Legislature’s intent of eliminating stale construction defect claims. 

Florida’s four-year statute of limitations for construction defect claims remains the same under the new bill, with the important exception that the date from which the clock begins to run is the earlier, as opposed to the later, of the triggering events

Before the legislature enacted SB 360, the statute of limitations and statute of repose began running on the later of: (i) the date of actual possession by the owner; (ii) the date of the issuance of a certificate of occupancy (CO); (iii) the date of abandonment of construction if not completed; or (iv) the date of completion or termination of the contract. Despite the Florida Legislature’s intent of providing finality and certainty to potential defendants, the previous version of by §95.11(3)(c) did anything but. Certain of the statutes’ triggering events invited creative pleading capitalizing on the ambiguities as to when the “completion or termination” of the contract occurred. For example, in Cypress Fairway Condo. v. Bergeron Constr. Co., Inc., 2015 WL 2129473 (Fla. 5th DCA, May 8, 2015), the court grappled with whether a contract was “completed” on the date that the contractor submitted its final application for payment, or the date that the owner actually made that final payment. Although the contested period was only three days, the difference in those days was jurisdictional for the plaintiff. There, the court determined that a contract is “complete” when final payment is made. This ambiguity was not limited to the date of “completion or termination.”  Sabal Chase Homeowners Association, Inc. v. Walt Disney World Co., 726 So.2d 796 (Fla. 3d DCA 1999) involved a community of multiple townhomes and condominiums. Under the then-applicable 15-year statute of repose, the court determined that the statute of repose ran according to the date on which the last certificate of occupancy was issued in the community. In Harrell v. Ryland Group, 277 So.3d 292 (Fla. 1st DCA 2019), the statute of repose ran, not according to the date of the issuance of the certificate of occupancy, but rather, the date on which the homeowners took possession of the home as reflected on a warranty deed. And, just recently, after SB 360 passed, the Second District Court of Appeal issued its opinion in Westpark Pres. Homeowners Ass’n v. Pulte Home Corp., No. 2D21-2084 (Fla. 2d DCA May 10, 2023), in which the court found that the statute of repose ran on the date of the issuance of the last certificate of occupancy for a development, and not on the date on which individual homeowners took possession of their homes from the developer by warranty deed.

The new iteration of §95.11(3)(c) eliminates the case-by-case factual investigation of potential dates. Under the revised version of §95.11(3)(c), the statutes begin to run on the earlier of (i) the date of issuance of a temporary certificate of occupancy (TCO), a CO, or a certificate of completion (CC); or (ii) the date of abandonment if construction is not completed. This change provides a tangible point in time from which to measure the limitations or repose period where a CC, TCO, or CC is issued. Accordingly, owners, design professionals, and contractors, alike will know exactly when the time for filing suit will expire. 

Ostensibly, the bill benefits potential defendants by reducing the time of their exposure to liability. Florida law requires insurance carriers to offer coverage to contractors for liability arising out of current or completed operations for a period sufficient to protect against liability arising out of an action brought within the time limits provided in §95.11(3)(c). §627.441(2), Fla. Stat. (2022). Put otherwise, the longer the statute of repose, the longer the period that a contractor, and its insurance carrier, remain “on the hook.” Contractors, in turn, pass these increased costs on to developers and property owners.

While opponents of the bill argued that SB 360 would leave property owners more vulnerable to contractors who performed shoddy work, given the inextricable link between the costs of commercial general liability policies and the length of the period of repose, enacting SB 360 could result in a “win-win” for builders and developers by combatting rising construction and insurance costs.

New Requirement for Materiality for §553 Claim

Finally, SB 360 enacts a heightened standard for claims brought pursuant to Chapter 553, Fla. Stat., otherwise known as the Florida Building Code. Florida law now limits recovery to only “material violations” of the Florida Building Code, defined as a “violation that exists within a completed building, structure, or facility which may reasonably result, or has resulted, in physical harm to a person or significant damage to the performance of a building or its systems.”  §553.84, Fla. Stat. (2023). This requirement of “materiality” appears to curtail owners’ ability to sue builders and other construction professionals. What constitutes “significant damage” will likely produce the next wave of Florida construction defects jurisprudence.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

New Florida Bill Shortens Time for Construction Defect Lawsuits

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Jessica Zelitt | Adams and Reese

On Thursday, April 13, 2023, Florida Governor Ron DeSantis signed Senate Bill 360 into law. This legislation alters the time period for bringing forward construction defect lawsuits, as well as modifies the current private right of action against a contractor for violation of the Florida Building Code.

First, SB 360 amends § 95.11(3)(c), Florida Statutes, to reduce the statute of repose from ten years to seven years for actions founded on latent construction defects. The legislation also changes the manner in which this time period is calculated under both the seven-year statute of repose and four-year statute of limitations for construction defect cases.

Under the prior statute, the time to commence an action began with the later of (i) the date of actual possession by the owner, (ii) the date of the issuance of a certificate of occupancy (CO) (iii) the date of abandonment of construction if not completed, or (iv) the date of completion or termination of the contract.

Under the revised statute, the time to commence an action begins with the earlier of (i) the date of issuance of a temporary certificate of occupancy (TCO), a CO, or a certificate of completion (CC), or (ii) the date of abandonment if construction is not completed.

This change provides a concrete point in time from which to measure the limitations or repose period where CC, TCO, or CC are issued by allowing owners, design professionals, and contractors alike to know exactly when time for filing suit will expire. In turn, courts will require fewer resources in determining whether a defect claim is barred.

On the other hand, this amendment creates room for uncertainty in situations where a TCO, CO, or CC is not generally issued and the project is not abandoned by the contractor.

For example, projects such as window replacement, roof replacement, air conditioning or heating system replacement, pool installation, interior remodeling, and installation of security or technology systems are typically completed without issuing a TCO, CO, or CC. Certainly, there are to be situations where defects arise from this type of work, and it will now be difficult to pinpoint how long an owner has to bring a claim.

With the prior statute, at least the date of completion of the contract was provided to serve as the trigger. The passage of another recent statute HB 837, which reduced the time to bring negligence actions from four years to two years, may also create complications in projects where there is not a CO, TCO or a CC. Unfortunately, future court decisions or statutory amendment may be needed to resolve those uncertainties.

Also as part of the amendments to § 95.11(3)(c), Florida Statutes, SB 360 adds a specific time of commencement for newly constructed single family homes that are first used as a model home. Under these circumstances, the time to bring an action begins to run when the deed transferring title from the developer to the purchaser is recorded. This addition offsets the effect of the change in when the limitations or repose period begins to run on purchasers of former model homes, as it prevents the limitations or repose period from running before the purchaser actually obtains title to the home.

Additionally, the legislation clarifies that if a project consists of “the design, planning, or construction of multiple buildings,” each building will be considered separate for determining the limitations period, based upon when that building receives a TCO, CO, or certificate of completion.

The final substantive change established by SB 360 is a modification of the standard for bringing a private action for violation of the Florida Building Code under § 553.84, Florida Statutes. Now, for such a violation to be actionable, it must be a material violation.

Material is subsequently defined as a violation within a completed structure “which may reasonably result, or has resulted, in physical harm to a person or significant damage to the performance of a building or its systems.”

This amendment serves to eliminate actions based upon merely technical violations of the Building Code that pose no measurable risk to life or property.

The changes imposed by SB 360 became effective immediately upon the bill being signed into law, on April 13, 2023. Importantly, the changes to the limitations and repose period apply to any action commenced after the effective date, regardless of when the claim accrued. However, the new law does contain a grace period for claims that would not have been barred under the previous version of § 95.11(3)(c), but are now barred under the new version. For these actions, a claimant has until July 1, 2024 to bring the claim.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Florida’s Tort Reform and its Impact on Subrogation

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Matthew Peaire | Butler Weihmuller Katz Craig

HB 837 was introduced to the Florida House of Representatives on February 15, 2023.  The bill went quickly through the House of Representatives and Senate and was signed into law on March 24, 2023, by Governor Ron DeSantis.  The bill was 39 pages long and addressed many aspects relating to Tort and Insurance related litigation.  From a subrogation perspective, the bill will have two significant impacts on subrogation litigation in the state of Florida.

First, HB 837 has shortened the statute of limitations for negligence actions from 4 years to 2 years.  The amendment to Florida’s Statute of Limitations (95.11 FSA) applies to causes of action accruing after the effective date of the law.  Other than the obvious fact that lawsuits now must be filed two years sooner for negligence actions, one impact this amendment may have on subrogation litigation is that it may require lawsuits to be filed before the underlying adjustment of the claim is finalized.  There are other states that have short negligence statutes of limitations (for example Louisiana 1 year or Texas 2 years), so shortened tort statutes of limitations are not unique.  However, all attorneys who handle subrogation matters in Florida will now need to be aware of this change and the impacts that it may have on filing suit on a matter that has not been fully adjusted. 

Second, the bill changes Florida’s comparative negligence standard from “pure comparative negligence” to a “modified comparative negligence” standard.  Previously, in Florida, in a negligence action, a Plaintiff’s recovery is reduced by their percentage of fault.  HB 837  now reads “In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.”  This in effect shifts Florida from a pure to a modified comparative fault standard.  While the insured’s potential comparative fault was something the subrogation attorney/professional would always analyze, Florida subrogation handlers must now analyze whether the comparative fault is more than fifty percent of the cause of the event such that it now bars any recovery. 

In the coming weeks/months, there will be much written by individuals for and against these changes.  For subrogation professionals, it is important that you are aware of the changes as they will impact the pursuant of negligence actions going forward.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.