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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to construction defects; amending ss. 2
558.001 and 558.002, F.S.; conforming provisions to 3
changes made by the act; amending s. 558.003, F.S.; 4
providing that deviations from the initial plans and 5
specifications for construction projects are not 6
considered construction defects; amending s. 558.004, 7
F.S.; revising the list of parties to be served 8
written notice; revising the list of parties to be 9
served written notice; requiring such claimants to 10
describe with specificity the location of the kn own 11
damages from the alleged defective conditions; 12
revising which parts of the property the parties 13
served may inspect; revising the persons to whom the 14
parties served may serve a notice of claim; requiring 15
such claimants who accept an offer to repair an 16
alleged construction defect to provide the offeror 17
reasonable access to the claimant's property during a 18
specified timeframe to perform the repair; providing 19
that such claimants may proceed with an action against 20
an offeror without further notice if the pay ment or 21
repairs do not occur within the agreed -upon timetable; 22
providing exceptions; prohibiting a claimant from 23
proceeding with an action against an offeror if the 24
offeror makes payment or completes the repairs within 25
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
the agreed-upon timetable in the acce pted settlement 26
offer; providing that if such persons served by such 27
claimants obtain the required building permits and 28
certificate of occupancy, and the local government 29
approves the plans, the construction project passes 30
all required inspections under th e Florida Building 31
Code; providing applicability; reenacting and amending 32
s. 558.005, F.S.; requiring claimants representing 33
more than 20 parcels and any parties served with a 34
notice of claim alleging a construction defect to 35
agree to preaction mediation i n writing; requiring 36
such parties served to deposit sufficient funds in an 37
escrow account to be managed by an escrow agent for a 38
specified purpose; providing when funds may be 39
distributed; requiring such parties to contract with a 40
licensed engineer or cons truction management firm to 41
certify the status of the completion of each agreed -42
upon defective condition and damage; providing that 43
any remaining funds in the escrow account be released 44
back to the payor; providing an effective date. 45
46
Be It Enacted by the Legislature of the State of Florida: 47
48
Section 1. Section 558.001, Florida Statutes, is amended 49
to read: 50
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
558.001 Legislative findings and declaration. —The 51
Legislature finds that it is beneficial to have an alternative 52
method to resolve constructio n disputes that would reduce the 53
need for litigation as well as protect the rights of property 54
owners. An effective alternative dispute resolution mechanism in 55
certain construction defect matters should involve the claimant 56
filing a notice of claim with th e developer, contractor, 57
subcontractor, supplier, or design professional that the 58
claimant asserts is responsible for the defect, and should 59
provide the developer, contractor, subcontractor, supplier, or 60
design professional, and the insurer of the developer, 61
contractor, subcontractor, supplier, or design professional, 62
with an opportunity to resolve the claim through confidential 63
settlement negotiations without resort to further legal process. 64
Section 2. Subsection (3) of section 558.002, Florida 65
Statutes, is amended to read: 66
558.002 Definitions. —As used in this chapter, the term: 67
(3) "Claimant" means a property owner, including a 68
subsequent purchaser or association, who asserts a claim for 69
damages against a developer, contractor, subcontractor, 70
supplier, or design professional concerning a construction 71
defect or a subsequent owner who asserts a claim for 72
indemnification for such damages. The term does not include a 73
developer, contractor, subcontractor, supplier, or design 74
professional. 75
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
Section 3. Section 558.003, Florida Statutes, is amended 76
to read: 77
558.003 Action; compliance. —A claimant may not file an 78
action subject to this chapter without first complying with the 79
requirements of this chapter. If a claimant files an action 80
alleging a construct ion defect without first complying with the 81
requirements of this chapter, on timely motion by a party to the 82
action the court shall stay the action, without prejudice, and 83
the action may not proceed until the claimant has complied with 84
such requirements. T he notice requirement is not intended to 85
interfere with an owner's ability to complete a project that has 86
not been substantially completed. The notice is not required for 87
a project that has not reached the stage of completion of the 88
building or improvement . A deviation from initial plans and 89
specifications, including, but not limited to, the substitution 90
of products or components, is not considered a construction 91
defect as defined in s. 558.002. 92
Section 4. Subsections (1) through (4) and subsection (8) 93
of section 558.004, Florida Statutes, are amended, and 94
subsection (16) is added to that section, to read: 95
558.004 Notice and opportunity to repair. — 96
(1)(a) In actions brought alleging a construction defect, 97
the claimant must shall, at least 60 days bef ore filing any 98
action, or at least 120 days before filing an action involving 99
an association representing more than 20 parcels, serve written 100
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notice of claim on the developer, contractor, subcontractor, 101
supplier, or design professional, as applicable, whic h notice 102
must shall refer to this chapter. If the construction defect 103
claim arises from work performed under a contract, the written 104
notice of claim must be served on the person with whom the 105
claimant contracted. 106
(b) The notice of claim must describe in reasonable detail 107
the nature of each alleged construction defect and, if known, 108
the damage or loss resulting from the defect. Based upon at 109
least a visual inspection by the claimant or its agents, the 110
notice of claim must identify the location of each alle ged 111
construction defect sufficiently to enable the responding 112
parties to locate the alleged defect without undue burden. For 113
associations representing more than 20 parcels, the notice of 114
claim must describe with specificity the locations of and known 115
damages from the alleged defective condition, including, but not 116
limited to, those floors and units in the buildings where the 117
defective condition and damages are located. The claimant has no 118
obligation to perform destructive or other testing for purposes 119
of this notice. 120
(c) The claimant must attempt shall endeavor to serve the 121
notice of claim within 15 days after discovery of an alleged 122
defect, but the failure to serve notice of claim within 15 days 123
does not bar the filing of an action, subject to s. 558.003. 124
This subsection does not preclude a claimant from filing an 125
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action sooner than 60 days, or 120 days as applicable, after 126
service of written notice as expressly provided in subsection 127
(6), subsection (7), or subsection (8). 128
(d) A notice of claim served pursuant to this chapter does 129
shall not toll any statute of repose period under chapter 95. 130
(2) Within 30 days after service of the notice of claim, 131
or within 50 days after service of the notice of claim involving 132
an association representing more than 20 parcels, the person 133
served with the notice of claim under subsection (1) is entitled 134
to perform a reasonable inspection of the property and common 135
elements, or of each unit subject to the claim to assess each 136
alleged construction defect. An association's right to access 137
property for either maintenance or repair includes the authority 138
to grant access for the inspection. The claimant shall provide 139
the person served with notice under subsection (1) and such 140
person's contractors o r agents reasonable access to the property 141
during normal working hours to inspect the property to determine 142
the nature and cause of each alleged construction defect and the 143
nature and extent of any repairs , remediation, or replacements 144
necessary to remedy each defect. The person served with notice 145
under subsection (1) shall reasonably coordinate the timing and 146
manner of any and all inspections with the claimant to minimize 147
the number of inspections. The inspection may include 148
destructive testing by mutual a greement under the following 149
reasonable terms and conditions: 150
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
(a) If the person served with notice under subsection (1) 151
determines that destructive testing is necessary to determine 152
the nature and cause of the alleged defects, such person must 153
shall notify the claimant in writing. 154
(b) The notice must shall describe the destructive testing 155
to be performed, the person selected to do the testing, the 156
estimated anticipated damage and repairs to or restoration of 157
the property resulting from the testing, the estimated amount of 158
time necessary for the testing and to complete the repairs or 159
restoration, and the financial responsibility offered for 160
covering the costs of repairs or restoration. 161
(c) If the claimant promptly objects to the person 162
selected to perform the destructive testing, the person served 163
with notice under subsection (1) must shall provide the claimant 164
with a list of three qualified persons from which the claimant 165
may select one such person to perform the testing. The person 166
selected to perform the testing shall operate as an agent or 167
subcontractor of the person served with notice under subsection 168
(1) and shall communicate with, submit any reports to, and be 169
solely responsible to the person served with notice. 170
(d) The testing must shall be done at a mutually agreeable 171
time. 172
(e) The claimant or a representative of the claimant may 173
be present to observe the destructive testing. 174
(f) The destructive testing may shall not render the 175
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
property uninhabitable. 176
(g) There are shall be no construction lien rights under 177
part I of chapter 713 for the destructive testing caused by a 178
person served with notice under subsection (1) or for restoring 179
the area destructively tested to the condition existing before 180
prior to testing, except to the extent the owner contracts for 181
the destructive testing or restoration. 182
183
If the claimant refuses to agree and thereafter permit 184
reasonable destructive testing, the claimant has shall have no 185
claim for damages which could have been av oided or mitigated had 186
destructive testing been allowed when requested and had a 187
feasible remedy been promptly implemented. 188
(3) Within 10 days after service of the notice of claim, 189
or within 30 days after service of the notice of claim involving 190
an association representing more than 20 parcels, the person 191
served with notice under subsection (1) may serve a copy of the 192
notice of claim to each developer, contractor, subcontractor, 193
supplier, or design professional whom it reasonably believes is 194
responsible for each defect specified in the notice of claim and 195
must shall note the specific defect for which it believes the 196
particular developer, contractor, subcontractor, supplier, or 197
design professional is responsible. The notice described in this 198
subsection may not be construed as an admission of any kind. 199
Each such developer, contractor, subcontractor, supplier, and 200
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design professional may inspect the property as provided in 201
subsection (2). 202
(4) Within 15 days after service of a copy of the notice 203
of claim pursuant to subsection (3), or within 30 days after 204
service of the copy of the notice of claim involving an 205
association representing more than 20 parcels, the developer, 206
contractor, subcontractor, supplier, or design professional must 207
serve a written response to the person who served a copy of the 208
notice of claim. The written response must include a report, if 209
any, of the scope of any inspection of the property and the 210
findings and results of the inspection. The written response 211
must include one or more of the offers or statements specified 212
in paragraphs (5)(a) -(e), as chosen by the responding developer, 213
contractor, subcontractor, supplier, or design professional, 214
with all of the information required for that offer or 215
statement. 216
(8)(a) If the claimant timely a nd properly accepts the 217
offer to repair an alleged construction defect, the claimant 218
must shall provide the offeror and the offeror's agents 219
reasonable access to the claimant's property during normal 220
working hours to perform the repair by the agreed -upon timetable 221
as stated in the offer. If the offeror does not make the payment 222
or repair the defect within the agreed time and in the agreed 223
manner, except for reasonable delays beyond the control of the 224
offeror, including, but not limited to, weather condition s, 225
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delivery of materials, claimant's actions, or issuance of any 226
required permits, the claimant may, without further notice, 227
proceed with an action against the offeror based upon the claim 228
in the notice of claim. If the offeror makes payment or repairs 229
the defect within the agreed time and in the agreed manner, the 230
claimant is barred from proceeding with an action for the claim 231
described in the notice of claim or as otherwise provided in the 232
accepted settlement offer. 233
(b) For associations representing mor e than 20 parcels, if 234
the claimant timely and properly accepts the offer to repair an 235
alleged construction defect pursuant to paragraph (a), the 236
claimant must provide the offeror and the offeror's agents, 237
including the developer, contractor, subcontractor, supplier, or 238
design professional, reasonable access to the claimant's 239
property, including common elements, association property, and 240
individual units, during normal working hours to perform the 241
repair according to the agreed -upon timetable as stated in th e 242
offer. If the offeror does not make the payment or repair the 243
defect within the agreed time and in the agreed manner, except 244
for reasonable delays beyond the control of the offeror, 245
including, but not limited to, weather conditions, delivery of 246
materials, claimant's actions, or issuance of any required 247
permits, the claimant may, without further notice, proceed with 248
an action against the offeror based upon the claim in the notice 249
of claim. If the offeror makes payment or repairs the defect 250
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within the agreed-upon timetable and in the agreed manner, the 251
claimant is barred from proceeding with an action for the claim 252
described in the notice of claim or as otherwise provided in the 253
accepted settlement offer. 254
(16) If the person served with the notice of claim in 255
subsection (1) obtains the required building permits and 256
certificate of occupancy, and a local government or public 257
agency with authority to enforce the Florida Building Code 258
approves the plans, the construction project passes all required 259
inspections under the Florida Building Code. If there is no 260
personal injury or damage to property other than the property 261
that is the subject of the permits, plans, and inspections, this 262
chapter does not apply unless the person or party knew or should 263
have known that the material violation existed. 264
Section 5. Subsection (4) of section 558.005, Florida 265
Statutes, is amended, subsections (7), (8), and (9) are added to 266
that section, and subsection (6) of that section is reenacted, 267
to read: 268
558.005 Contract provisions; application.— 269
(4) At any time after the scope of the alleged defects has 270
been determined and sufficiently described by the claimant and 271
receipt of a notice of claim is acknowledged by the person to 272
whom notice is served or otherwise must be served under s. 273
558.004(1), a claimant and such person the person to whom notice 274
is served or otherwise must be served under s. 558.004(1) may 275
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agree in writing to preaction mediation or otherwise alter the 276
procedure for the notice of claim process described in this 277
chapter. However, for associations that represent more than 20 278
parcels, if the scope of the alleged defects has been determined 279
and sufficiently described by the claimant and receipt of a 280
notice of claim is acknowledged by the person to whom notice is 281
served under s. 558.004(1), a claimant and such person must 282
agree in writing to preaction mediation . 283
(6) Notwithstanding s. 558.003, unless the parties agree 284
that this chapter does not apply, after October 1, 2009, any 285
written contract for improvement of real property entered into 286
between an owner and a contractor, or between an owner and a 287
design professional, must contain substantially the following 288
notice: "ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE 289
NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLOR IDA STATUTES." 290
The failure to include in the contract the notice provided in 291
this subsection does not subject the contracting owner, 292
contractor, or design professional to any penalty. The purpose 293
of the contractual notice is to promote awareness of the 294
procedure, not to be a penalty. 295
(7) Upon agreement between the parties that such persons 296
served are responsible for the costs associated with the alleged 297
defective condition, the persons served shall deposit sufficient 298
funds in an escrow account to be manag ed by an escrow agent for 299
the purpose of protecting and distributing the funds. The funds 300
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
may be released from escrow only as follows: 301
(a) For remediation or repairs of the agreed -upon 302
defective condition as determined by the settlement; or 303
(b) For remediation or repairs of known damages occurring 304
as a consequence of the agreed -upon defective condition as 305
determined by the settlement. 306
(8) The parties shall contract with a third -party licensed 307
engineer as defined in s. 471.005 or a construction managem ent 308
entity as defined in s. 255.32(1) to confirm and certify the 309
status of completion of each identified and agreed -upon 310
defective condition and damages occurring as a consequence of 311
the defective condition. 312
(9) Upon completion of the remediation or repa ir of the 313
defective condition, any remaining funds in the escrow account 314
must be released by the agent back to the payor. 315
Section 6. This act shall take effect July 1, 2025. 316