Tag Archives: Statute of Repose

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.

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.

Client Alert: Florida Enacts Statute of Repose Reform Bill for Design and Construction Defects

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Brett M. Henson | Shumaker Loop & Kendrick

On April 13, 2023, Governor Ron DeSantis signed into law SB 360 (Chapter 2023-22, Laws of Florida), which shortens the time period for bringing design and construction defect claims, clarifies the application of these time periods on multi-building projects, and adds a “materiality” required to statutory claims for violation of Florida’s Building Code pursuant to Fla. Stat. § 554.84. Below is a brief summary of how this new law will impact design and construction defect claims in the State of Florida.

  1. How are the statutes of limitations and repose calculated under the new law?

Fla. Stat. §95.11(3)(c) establishes the time period for bringing design and construction defect claims. While SB 360 leaves intact the four-year statute of limitations for defect claims, it shortens the statute of repose from 10 years to seven years for latent defects, or those that are “hidden” and not discovered until after expiration of the statute of limitations. 

SB 360 further shortens the time for bringing claims by removing certain triggering events, including date of actual possession by the owner and date of completion or termination of the design or construction contract. Fla. Stat. §95.11(3)(c), as amended, now provides that the only triggering events for the limitations or repose periods are: (1) issuance of a temporary certificate of occupancy (TCO), certificate of occupancy (CO), or certificate of completion; or (2) the date of abandonment of construction, if not completed.  SB 360 further provides that these periods will begin to run from the earliest of these events. Under the former version of Fla. Stat. §95.11(3)(c), the limitations and repose periods did not begin to run until the latest triggering event, meaning that these periods could extend well beyond completion of the project.

Thus, SB 360 establishes discrete dates in which the limitations and repose period begin to run. Under the old version of Fla. Stat. §95.11(3)(c), there were often factual disputes as to when an owner took possession of the property, or when a contract was completed. As amended, Fla. Stat. §95.11(3)(c) removes the likelihood of dispute over these issues, since the issuance of a TCO, CO, or certificate of completion is established with certainty in the public record. SB 360 also clarifies that if a TCO, CO, or certificate of completion is issued, warranty or service work performed within the scope of the building permit will not delay the triggering of the statutes of limitation or repose.

  1. How do the statutes of limitation and repose apply to model homes or multi-building projects?

SB 360 addresses two concerns unique to the home building industry. First, home builders will often obtain a certificate of occupancy for a model home, which is later sold to a homeowner.  Because amended Fla. Stat. §95.11(3)(c) provides that the limitations and repose period can begin to run upon issuance of a TCO, CO, or certificate of completion, SB 360 further provides that for model homes, the limitations and repose periods do not begin to run until the date of the deed transferring title to the first purchaser. This addition ensures that the limitations or repose period does not run before the home builder transfers title to the first purchaser.

Second, for multi-building projects such as townhomes, there is some uncertainty in Florida courts regarding whether the limitations and repose period begins to run upon completion of each building, or upon completion of the entire project. SB 360 now provides that on such projects, the limitations and repose periods begin to run on a building–by-building basis, upon each building receiving a TCO, CO, or certificate of completion.

  1. What must a claimant now demonstrate to prove a statutory violation of Florida’s Building Code?

SB 360 adds a “materiality” requirement to support a claim for statutory violation of Florida’s Building Code, pursuant to Fla. Stat. §553.84. An owner must now show not only the existence of a Florida Building Code violation, but also that the violation exists within a completed building, structure, or facility, and also has resulted in physical harm to a person or significant damage to the performance of a building or its systems. This revision arguably eliminates claims for “technical” violations of the Florida Building Code, where there is no resulting damage to the property or personal injury.

  1. When do these changes become effective?

SB 360 takes effect as of April 13, 2023 and applies to all design and construction defect actions filed on or after this date. However, because these changes shorten the manner in which the limitations and repose periods are calculated, the law provides until July 1, 2024 to file claims that would not have been time barred under the old version of Fla. Stat. §95.11(3)(c), but would be barred by the amendment.

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.

Win for Contractors on Start Time of Florida Construction Statute of Repose

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Jason Bullinger | Rumberger Kirk

Last October, Rumberger attorney Jason Bullinger and attorney Dan Webster at Daniel J. Webster, P.A. obtained a win for Florida contractors, engineers, and architects by persuading a Volusia County Circuit judge that a condominium Association’s lawsuit was barred by Florida’s ten-year statute of repose (Opus Condominium Association, Inc. v. Associated Construction Group Inc., et. al.). The Association filed suit in mid-2020, alleging that there were several defects in the original construction of the condominium. The Defendant, a general contractor, disputed that there were any defects in his work. Regardless, he completed all work under the contract in mid-2009, and the certificate of occupancy was issued in December 2009. Shortly thereafter, the property went into foreclosure after the developer had trouble selling the units. A successor developer took over, and it wasn’t until mid-2014 that the final unit was sold to a resident. Nevertheless, the Association argued that the statute didn’t start running until either turnover to the Association or the sale of the last unit to a non-developer purchaser.

Florida’s statute of repose with respect to construction defect claims starts to run at the latest of four events: the date of “actual possession by the owner,” the date the certificate of occupancy was issued, the date construction was abandoned (if applicable), or the date of completion of the contract between the engineer, architect, or contractor and their employer. The Association urged the court to adopt the First District’s uncontested determination in Harrell v. Ryland Group that the owner had actual possession on the date the warranty deed was issued. The general contractor/engineer argued that the analysis of the Third District in Sabal Chase v. Walt Disney World should apply, which suggested that the developer could also be the owner in possession. In fact, Sabal Chase is more persuasive, given that Harrell involved a single-family home built and sold by the same entity, and Sabal Chase involved a multi-unit, common interest community.

The judge took issue with the Association’s position that the general contractor had to wait close to five years after he completed his work before he could be secure in the knowledge that the 10-year state had started to run. Apart from noting the brief discussion by the First District in Harrell, the Association was unable to persuade the court that the legislature intended the “owner” to be the final person in the chain of potential users who intended to live in the property.

The ruling is surely a win for the construction defense bar on an ambiguity within the statute of repose that has yet to be resolved by either the district courts of appeal or the legislature. This decision arrived at the correct conclusion for a statute that was designed to protect engineers, architects, and contractors from stale claims. The written order was entered disposing of the case for all the parties who joined in the motions.

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 Makes Another Run at Revising the Statute of Repose for Construction Defects

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Jason Bullinger | Rumberger Kirk

In late December 2022, the Florida Legislature proposed changes to the Florida Statute of Repose for Construction Defects to clarify a statute with ambiguous language. The statute is used to determine how long a party has to file a claim for construction defects after a structure or improvement has been completed.

When Does the Statute of Repose Start to Run?

How Florida’s 10-year statute of repose period is calculated has been somewhat of an open question for some time. In its current form, the statute of repose starts to run from the latest of the following four events: 1) the date of actual possession by the owner, 2) the date of the issuance of a certificate of occupancy, 3) the date of abandonment of construction if not completed, or 4) the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer. Fla. Sta. 95.11(c). After the 10-year period expires, a claim is cut off or extinguished, and can no longer be brought. Recent efforts by attorneys who regularly represent homeowners and condominium associations have fought to push any event triggering the running of the statute as far back as possible, and in some cases, 15 years or more after a contractor finishes their work and is paid for the job. This leaves contractors and design professionals wondering when—if ever—they can discard old records and move on.

Proposed Bill Attempts to Clarify and Change the Repose Period

House Bill 85 was introduced on December 29, 2022 and is the Florida legislature’s attempt to add clarity to the statute. Specifically, the most significant change is to the triggering events, which, if legislation passes, would be revised to read:

  1. the issuance of a temporary certificate of occupancy,
  2. the date of the issuance of a certificate of occupancy,
  3. or the date of issuance of a certificate of completion.

The repose period would start to run seven years from the earliest of the three events. And if any of the above three events have not occurred, the statute starts to run seven years after the abandonment of construction or the date of the completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is earliest.

Additional Proposed Changes

The statute also provides a carve-out for multi-dwelling buildings, setting each dwelling unit apart for the purpose of determining the limitations period. Most notably, the proposed revised statute eliminates the trigger concerning the “actual possession by the owner.” Just who is defined as the “owner” for the purpose of the statute has been unclear for years. Instead of trying to define whether that could be things the developer, related corporation, or the first natural person to buy the dwelling and live in it, the statute simply removes that phrase in its entirety.

Past Attempts to Renovate the Statute

This is not the legislature’s first attempt to renovate the statute. In 2017, the legislature added language to clarify what was meant by the “completion of the contract” between the contractor, engineer, and architect. See House Bill 377 (2017). However, this amendment failed to address what has become a more contested issue, which is who was meant to serve as the “owner” with respect to the triggering event of the “actual possession by the owner.” See, e.g., Sabal Chase Homeowners Association, Inc. v. Walt Disney World Co., 726 So.2d 796 (Fla. 3d DCA 1999); Harrell v. Ryland Group, 277 So.3d 292 (Fla. 1st DCA 2019).

Proposed Bill Reinstates Original Purpose of Statute

Florida’s statute of repose for construction claims was originally designed to protect contractors from stale claims. Memories fade, and when questioned, contractors often fail to recall specific details on the work they did sometimes well beyond 10 years before the lawsuit is filed. When a project involves dozens of subcontractors and multiple structures, the problem can be compounded. This puts both contractors and their counsel at a disadvantage when defending against these claims. The new bill is a welcomed attempt to add clarity to the triggering events that start the running of the repose period and is a benefit to contractors and design professionals who work in Florida.

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.