August 07, 2020
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       Florida Senate - 2009                                    SB 2064
       
       
       
       By Senator Altman
       
       
       
       
       24-00641B-09                                          20092064__
    1                        A bill to be entitled                      
    2         An act relating to construction defects; amending s.
    3         558.002, F.S.; providing and revising definitions;
    4         amending s. 558.003, F.S.; limiting application of
    5         certain notices; amending s. 558.004, F.S.; revising
    6         requirements and procedures for notice and opportunity
    7         to repair certain defects; specifying that there are
    8         no construction lien rights under certain provisions
    9         of law for certain testing; providing an exception;
   10         revising requirements for parties to exchange certain
   11         materials; providing penalties; amending s. 558.005,
   12         F.S.; revising requirements for application to certain
   13         claims for legal relief; specifying certain notices
   14         required for certain contracts; authorizing parties to
   15         agree to mediation; revising application of notice
   16         requirements to certain earlier contracts; specifying
   17         a required notice for certain contracts; providing
   18         construction of the requirement; providing an
   19         effective date.
   20  
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Subsections (4) through (10) of section 558.002,
   24  Florida Statutes, are renumbered as subsections (5) through
   25  (11), respectively, a new subsection (4) is added to that
   26  section, and present subsection (8) of that section is amended,
   27  to read:
   28         558.002 Definitions.—As used in this chapter, the term:
   29         (4)“Completion of a building or improvement” means
   30  issuance of a certificate of occupancy for the entire building
   31  or improvement, or the equivalent authorization to occupy or use
   32  the improvement, issued by the governmental body having
   33  jurisdiction and, in jurisdictions where no certificate of
   34  occupancy or the equivalent authorization is issued, means
   35  substantial completion of construction, finishing, and equipping
   36  of the building or improvement according to the plans and
   37  specifications.
   38         (9)(8) “Service” means delivery by certified mail with a
   39  United States Postal Service record of evidence of delivery or
   40  attempted delivery, return receipt requested, to the last known
   41  address of the addressee, by hand delivery, or by delivery by
   42  any courier with written evidence of delivery.
   43         Section 2. Section 558.003, Florida Statutes, is amended to
   44  read:
   45         558.003 Action; compliance.—A claimant may not file an
   46  action subject to this chapter without first complying with the
   47  requirements of this chapter. If a claimant files an action
   48  alleging a construction defect without first complying with the
   49  requirements of this chapter, on timely motion by a party to the
   50  action the court shall stay abate the action, without prejudice,
   51  and the action may not proceed until the claimant has complied
   52  with such requirements. The notice requirement is not intended
   53  to interfere with an owner’s ability to complete a project that
   54  has not been substantially completed. The notice is not required
   55  for a project that has not reached the stage of completion of
   56  the building or improvement.
   57         Section 3. Section 558.004, Florida Statutes, is amended to
   58  read:
   59         558.004 Notice and opportunity to repair.—
   60         (1) In actions brought alleging a construction defect, the
   61  claimant shall, at least 60 days before filing any action, or at
   62  least 120 days before filing an action involving an association
   63  representing more than 20 parcels, serve written notice of claim
   64  on the contractor, subcontractor, supplier, or design
   65  professional, as applicable, which notice shall refer to this
   66  chapter. If the construction defect claim arises from work
   67  performed under a contract, the written notice of claim must be
   68  served on the person with whom the claimant contracted. The
   69  notice of claim must describe the claim in reasonable detail
   70  sufficient to determine the general nature of each alleged
   71  construction defect and a description of the damage or loss
   72  resulting from the defect, if known. The claimant shall endeavor
   73  to serve the notice of claim within 15 days after discovery of
   74  an alleged defect, but the failure to serve notice of claim
   75  within 15 days does not bar the filing of an action, subject to
   76  s. 558.003. This subsection does not preclude a claimant from
   77  filing an action sooner than 60 days, or 120 days as applicable,
   78  after service of written notice as expressly provided in
   79  subsection (6), subsection (7), or subsection (8).
   80         (2) Within 30 days after service receipt of the notice of
   81  claim, or within 50 days after service receipt of the notice of
   82  claim involving an association representing more than 20
   83  parcels, the person served with receiving the notice of claim
   84  under subsection (1) is entitled to perform a reasonable
   85  inspection of the property or of each unit subject to the claim
   86  to assess each alleged construction defect. An association’s
   87  right to access property for either maintenance or repair
   88  includes the authority to grant access for the inspection. The
   89  claimant shall provide the person served with receiving the
   90  notice under subsection (1) and such person’s contractors or
   91  agents reasonable access to the property during normal working
   92  hours to inspect the property to determine the nature and cause
   93  of each alleged construction defect and the nature and extent of
   94  any repairs or replacements necessary to remedy each defect. The
   95  person served with receiving notice under subsection (1) shall
   96  reasonably coordinate the timing and manner of any and all
   97  inspections with the claimant to minimize the number of
   98  inspections. The inspection may include destructive testing by
   99  mutual agreement under the following reasonable terms and
  100  conditions:
  101         (a) If the person served with receiving notice under
  102  subsection (1) determines that destructive testing is necessary
  103  to determine the nature and cause of the alleged defects, such
  104  person shall notify the claimant in writing.
  105         (b) The notice shall describe the destructive testing to be
  106  performed, the person selected to do the testing, the estimated
  107  anticipated damage and repairs to or restoration of the property
  108  resulting from the testing, the estimated amount of time
  109  necessary for the testing and to complete the repairs or
  110  restoration, and the financial responsibility offered for
  111  covering the costs of repairs or restoration.
  112         (c) If the claimant promptly objects to the person selected
  113  to perform the destructive testing, the person served with
  114  receiving notice under subsection (1) shall provide the claimant
  115  with a list of three qualified persons from which the claimant
  116  may select one such person to perform the testing. The person
  117  selected to perform the testing shall operate as an agent or
  118  subcontractor of the person served with receiving notice under
  119  subsection (1) and shall communicate with, submit any reports
  120  to, and be solely responsible to the person served with
  121  receiving notice.
  122         (d) The testing shall be done at a mutually agreeable time.
  123         (e) The claimant or a representative of the claimant may be
  124  present to observe the destructive testing.
  125         (f) The destructive testing shall not render the property
  126  uninhabitable.
  127         (g) There shall be no construction lien rights under part I
  128  of chapter 713 for the destructive testing caused by a person
  129  served with notice under subsection (1) or for restoring the
  130  area destructively tested to the condition existing prior to
  131  testing, except to the extent the owner contracts for the
  132  destructive testing or restoration.
  133  
  134  If In the event the claimant fails or refuses to agree and
  135  thereafter permit reasonable to destructive testing, the
  136  claimant shall have no claim for damages which could have been
  137  avoided or mitigated had destructive testing been allowed when
  138  requested and had a feasible remedy been promptly implemented.
  139         (3) Within 10 days after service receipt of the notice of
  140  claim, or within 30 days after service receipt of the notice of
  141  claim involving an association representing more than 20
  142  parcels, the person served with receiving the notice under
  143  subsection (1) may serve forward a copy of the notice of claim
  144  to each contractor, subcontractor, supplier, or design
  145  professional whom it reasonably believes is responsible for each
  146  defect specified in the notice of claim and shall note the
  147  specific defect for which it believes the particular contractor,
  148  subcontractor, supplier, or design professional is responsible.
  149  The notice described in this subsection may not be construed as
  150  an admission of any kind. Each such contractor, subcontractor,
  151  supplier, and design professional may inspect the property as
  152  provided in subsection (2).
  153         (4) Within 15 days after service of receiving a copy of the
  154  notice of claim pursuant to subsection (3), or within 30 days
  155  after service receipt of the copy of the notice of claim
  156  involving an association representing more than 20 parcels, the
  157  contractor, subcontractor, supplier, or design professional must
  158  serve a written response to the person who served forwarded a
  159  copy of the notice of claim. The written response shall include
  160  a report, if any, of the scope of any inspection of the
  161  property, the findings and results of the inspection, a
  162  statement of whether the contractor, subcontractor, supplier, or
  163  design professional is willing to make repairs to the property
  164  or whether such claim is disputed, a description of any repairs
  165  they are willing to make to remedy the alleged construction
  166  defect, and a timetable for the completion of such repairs. This
  167  response may also be served on the initial claimant by the
  168  contractor.
  169         (5) Within 45 days after service of receiving the notice of
  170  claim, or within 75 days after service receipt of a copy of the
  171  notice of claim involving an association representing more than
  172  20 parcels, the person who was served the received notice under
  173  subsection (1) must serve a written response to the claimant.
  174  The response shall be served to the attention of the person who
  175  signed the notice of claim, unless otherwise designated in the
  176  notice of claim. The written response must provide:
  177         (a) A written offer to remedy the alleged construction
  178  defect at no cost to the claimant, a detailed description of the
  179  proposed repairs necessary to remedy the defect, and a timetable
  180  for the completion of such repairs;
  181         (b) A written offer to compromise and settle the claim by
  182  monetary payment, that will not obligate the person’s insurer,
  183  and a timetable for making payment;
  184         (c) A written offer to compromise and settle the claim by a
  185  combination of repairs and monetary payment, that will not
  186  obligate the person’s insurer, that includes a detailed
  187  description of the proposed repairs and a timetable for the
  188  completion of such repairs and making payment;
  189         (d) A written statement that the person disputes the claim
  190  and will not remedy the defect or compromise and settle the
  191  claim; or
  192         (e) A written statement that a monetary payment, including
  193  insurance proceeds, if any, will be determined by the person’s
  194  insurer within 30 days after notification to the insurer by
  195  means of serving forwarding the claim, which service
  196  notification shall occur at the same time the claimant is
  197  notified of this settlement option, which the claimant may can
  198  accept or reject. A written statement under this paragraph may
  199  also include an offer under paragraph (c), but such offer shall
  200  be contingent upon the claimant also accepting the determination
  201  of the insurer whether to make any monetary payment in addition
  202  thereto. If the insurer for the person served with receiving the
  203  claim makes no response within the 30 days following service
  204  notification, then the claimant shall be deemed to have met all
  205  conditions precedent to commencing an action.
  206         (6) If the person served with receiving a notice of claim
  207  pursuant to subsection (1) disputes the claim and will neither
  208  remedy the defect nor compromise and settle the claim, or does
  209  not respond to the claimant’s notice of claim within the time
  210  provided in subsection (5), the claimant may, without further
  211  notice, proceed with an action against that person for the claim
  212  described in the notice of claim. Nothing in this chapter shall
  213  be construed to preclude a partial settlement or compromise of
  214  the claim as agreed to by the parties and, in that event, the
  215  claimant may, without further notice, proceed with an action on
  216  the unresolved portions of the claim.
  217         (7) A claimant who receives a timely settlement offer must
  218  accept or reject the offer by serving written notice of such
  219  acceptance or rejection on the person making the offer within 45
  220  days after receiving the settlement offer. If a claimant
  221  initiates an action without first accepting or rejecting the
  222  offer, the court shall stay abate the action upon timely motion
  223  until the claimant complies with this subsection.
  224         (8) If the claimant timely and properly accepts the offer
  225  to repair an alleged construction defect, the claimant shall
  226  provide the offeror and the offeror’s agents reasonable access
  227  to the claimant’s property during normal working hours to
  228  perform the repair by the agreed-upon timetable as stated in the
  229  offer. If the offeror does not make the payment or repair the
  230  defect within the agreed time and in the agreed manner, except
  231  for reasonable delays beyond the control of the offeror,
  232  including, but not limited to, weather conditions, delivery of
  233  materials, claimant’s actions, or issuance of any required
  234  permits, the claimant may, without further notice, proceed with
  235  an action against the offeror based upon the claim in the notice
  236  of claim. If the offeror makes payment or repairs the defect
  237  within the agreed time and in the agreed manner, the claimant is
  238  barred from proceeding with an action for the claim described in
  239  the notice of claim or as otherwise provided in the accepted
  240  settlement offer.
  241         (9) This section does not prohibit or limit the claimant
  242  from making any necessary emergency repairs to the property as
  243  are required to protect the health, safety, and welfare of the
  244  claimant. In addition, any offer or failure to offer pursuant to
  245  subsection (5) to remedy an alleged construction defect or to
  246  compromise and settle the claim by monetary payment does not
  247  constitute an admission of liability with respect to the defect
  248  and is not admissible in an action brought under this chapter.
  249         (10) A claimant’s service mailing of the written notice of
  250  claim under subsection (1) tolls the applicable statute of
  251  limitations relating to any person covered by this chapter and
  252  any bond surety until the later of:
  253         (a) Ninety days, or 120 days, as applicable, after service
  254  receipt of the notice of claim pursuant to subsection (1); or
  255         (b) Thirty days after the end of the repair period or
  256  payment period stated in the offer, if the claimant has accepted
  257  the offer. By stipulation of the parties, the period may be
  258  extended and the statute of limitations is tolled during the
  259  extension.
  260         (11) The procedures in this chapter apply to each alleged
  261  construction defect. However, a claimant may include multiple
  262  defects in one notice of claim. The initial list of construction
  263  defects may be amended by the claimant to identify additional or
  264  new construction defects as they become known to the claimant.
  265  The court shall allow the action to proceed to trial only as to
  266  alleged construction defects that were noticed and for which the
  267  claimant has complied with this chapter and as to construction
  268  defects reasonably related to, or caused by, the construction
  269  defects previously noticed. Nothing in this subsection shall
  270  preclude subsequent or further actions.
  271         (12) This chapter does not:
  272         (a) Bar or limit any rights, including the right of
  273  specific performance to the extent such right would be available
  274  in the absence of this chapter, any causes of action, or any
  275  theories on which liability may be based, except as specifically
  276  provided in this chapter;
  277         (b) Bar or limit any defense, or create any new defense,
  278  except as specifically provided in this chapter; or
  279         (c) Create any new rights, causes of action, or theories on
  280  which liability may be based.
  281         (13) Nothing in This section does not shall relieve the
  282  person who is served a receiving notice of claim under
  283  subsection (1) from complying with all contractual provisions of
  284  any liability insurance policy as a condition precedent to
  285  coverage for any claim under this section. However,
  286  notwithstanding the foregoing or any contractual provision, the
  287  providing of a copy of such notice to the person’s insurer, if
  288  applicable, shall not constitute a claim for insurance purposes.
  289  Nothing in this section shall be construed to impair technical
  290  notice provisions or requirements of the liability policy or
  291  alter, amend, or change existing Florida law relating to rights
  292  between insureds and insurers except as otherwise specifically
  293  provided herein.
  294         (14) To the extent that an arbitration clause in a contract
  295  for the sale, design, construction, or remodeling of real
  296  property conflicts with this section, this section shall
  297  control.
  298         (15) Upon request, the claimant and any the person served
  299  with receiving notice pursuant to subsection (1) shall have a
  300  mutual duty to exchange, within 30 days after service of a
  301  written request, which request must cite this subsection and
  302  include an offer to pay the reasonable costs of reproduction,
  303  any design plans, specifications, and as-built plans; any
  304  documents detailing the design drawings or specifications;
  305  photographs, videos, and expert reports that describe any defect
  306  upon which the claim is made; subcontracts; and purchase orders
  307  for the work that is claimed defective or any part of such
  308  materials all available discoverable evidence relating to the
  309  construction defects, including, but not limited to, expert
  310  reports, photographs, information received pursuant to
  311  subsection (4), and videotapes, if any. In the event of
  312  subsequent litigation, any party who failed to provide the
  313  requested materials such evidence shall be subject to such
  314  sanctions as the court may impose for a discovery violation.
  315  Expert reports exchanged between the parties may not be used in
  316  any subsequent litigation for any purpose, unless the expert, or
  317  a person affiliated with the expert, testifies as a witness or
  318  the report is used or relied upon by an expert who testifies on
  319  behalf of the party for whom the report was prepared.
  320         Section 4. Section 558.005, Florida Statutes, is amended to
  321  read:
  322         558.005 Contract provisions; application.—
  323         (1) Unless a claimant and a potential defendant have agreed
  324  in writing to opt out of the requirements of this section,
  325  Except as otherwise provided in subsections (3) and (4), the
  326  provisions of this chapter shall apply to any claim for legal
  327  relief for which the agreement to make the improvement was made
  328  after October 1, 2009, and for which the basis of the claim is a
  329  construction defect that has arisen after completion of a
  330  building or improvement. every contract for the design,
  331  construction, or remodeling of real property entered into:
  332         (2) For a claim of a construction defect pursuant to
  333  contracts for improvement entered into as described in this
  334  subsection, the following applicable notices are required:
  335         (a) Between July 1, 2004, and September 30, 2006, which
  336  contract contains the notice as set forth in paragraph (3)(2)(a)
  337  and is conspicuously set forth in capitalized letters.
  338         (b) Between On or after October 1, 2006, and September 30,
  339  2009, which contract contains the notice set forth in paragraph
  340  (3)(2)(b) and is conspicuously set forth in capitalized letters.
  341         (3)(2)(a) The notice required by paragraph (2)(1)(a) must
  342  be in substantially the following form:
  343  
  344  CHAPTER 558 NOTICE OF CLAIM
  345  
  346  CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS
  347  YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN
  348  ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS BEFORE YOU
  349  BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO
  350  THIS CONTRACT A WRITTEN NOTICE, REFERRING TO CHAPTER 558, OF ANY
  351  CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE
  352  SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION
  353  DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE
  354  ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT
  355  ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND
  356  PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED
  357  TO PROTECT YOUR INTERESTS.
  358         (b) The notice required by paragraph (2)(1)(b) must
  359  expressly cite this chapter and be in substantially the
  360  following form:
  361  
  362  CHAPTER 558 NOTICE OF CLAIM
  363  
  364  CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS
  365  YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN
  366  ALLEGED CONSTRUCTION DEFECT. SIXTY DAYS BEFORE YOU BRING ANY
  367  LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO THIS
  368  CONTRACT A WRITTEN NOTICE, REFERRING TO CHAPTER 558, OF ANY
  369  CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE
  370  SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION
  371  DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE
  372  ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT
  373  ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND
  374  PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED
  375  TO PROTECT YOUR INTERESTS.
  376         (4)(3)At any time After receipt of the initial notice of
  377  claim, a claimant and the person to whom notice is served or
  378  otherwise must be served receiving notice under s. 558.004(1)
  379  may agree in writing to pre-action mediation or otherwise, by
  380  written mutual agreement, alter the procedure for the notice of
  381  claim process described in this chapter.
  382         (5)(4)Notwithstanding the notice requirements of this
  383  section for contracts entered into on or after October 1, 2006,
  384  this chapter applies to all actions accruing before July 1,
  385  2004, but not yet commenced as of July 1, 2004, and failure to
  386  include such notice requirements in a contract entered into
  387  before July 1, 2004, does not operate to bar the procedures of
  388  this chapter from applying to all such actions. This chapter
  389  applies to all actions accruing on or after July 1, 2004, and
  390  all actions commenced on or after such date, regardless of the
  391  date of sale, issuance of a certificate of occupancy or its
  392  equivalent, or substantial completion of the construction.
  393  Notwithstanding the notice requirements of this section for
  394  contracts entered into between July 1, 2004, and September 30,
  395  2006, this chapter applies to all actions accruing before July
  396  1, 2004, but not yet commenced as of July 1, 2004, and failure
  397  to include such notice requirements in a contract entered into
  398  prior to July 1, 2004, does not operate to bar the procedures of
  399  this chapter from applying to all such actions. Notwithstanding
  400  the notice requirements of this section for contracts entered
  401  into on or after October 1, 2006, this chapter applies to all
  402  actions accruing before July 1, 2004, but not yet commenced as
  403  of July 1, 2004, and failure to include such notice requirements
  404  in a contract entered into before July 1, 2004, does not operate
  405  to bar the procedures of this chapter from applying to all such
  406  actions.
  407         (6) Notwithstanding s. 558.003, unless the parties agree
  408  that this chapter does not apply, after October 1, 2009, any
  409  written contract for improvement of real property entered into
  410  between an owner and a contractor, or between an owner and a
  411  design professional, must contain substantially the following
  412  notice: “ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE
  413  NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLORIDA STATUTES.”
  414  The failure to include in the contract the notice provided in
  415  this subsection does not subject the contracting owner,
  416  contractor, or design professional to any penalty. The purpose
  417  of the contractual notice is to promote awareness of the
  418  procedure, not to be a penalty.
  419         Section 5. This act shall take effect October 1, 2009.

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