Florida Senate - 2025 SB 1442 By Senator McClain 9-01136-25 20251442__ 1 A bill to be entitled 2 An act relating to construction defects; amending s. 3 558.003, F.S.; providing that deviations from the 4 initial plans and specifications for construction 5 projects are not considered construction defects; 6 amending s. 558.004, F.S.; revising the timeframe in 7 which a claimant representing more than a certain 8 number of parcels must serve written notice of claim 9 to certain parties; revising the list of parties to be 10 served written notice; requiring such claimants to 11 describe with specificity the location of the known 12 damages from the alleged defective conditions; 13 revising the timeframe in which the parties served may 14 perform a reasonable inspection of the property; 15 revising which parts of the property the parties 16 served may inspect; revising the timeframe in which 17 the parties served may serve a notice of claim to any 18 other person such party served believes is responsible 19 for the construction defects; revising the persons to 20 whom the parties served may serve a notice of claim; 21 revising the timeframe to file a written response to 22 such notice of claim; revising the timeframe in which 23 a served party must respond to a notice of claim; 24 requiring such claimants who accept an offer to repair 25 an alleged construction defect to provide the offeror 26 reasonable access to the claimants property during a 27 specified timeframe to perform the repair; providing 28 that such claimants may proceed with an action against 29 an offeror without further notice if the payment or 30 repairs do not occur within the agreed-upon timetable; 31 providing exceptions; prohibiting a claimant from 32 proceeding with an action against an offeror if the 33 offeror makes payment or completes the repairs within 34 the agreed-upon timetable in the accepted settlement 35 offer; providing that if such persons served by such 36 claimants obtain the required building permits and 37 certificate of occupancy, and the local government 38 approves the plans, the construction project passes 39 all required inspections under the code; providing 40 applicability; making technical changes; reenacting 41 and amending s. 558.005, F.S.; requiring claimants 42 representing more than 20 parcels and any parties 43 served with a notice of claim alleging a construction 44 defect to agree to preaction mediation in writing; 45 requiring such parties served to deposit sufficient 46 funds in an escrow account and managed by an escrow 47 agent for a specified purpose; providing when funds 48 may be distributed; requiring such parties to contract 49 with a licensed engineer or construction management 50 firm to certify the status of the completion of each 51 agreed-upon defective condition and damage; providing 52 that any remaining funds in the escrow account be 53 released back to the payor; providing an effective 54 date. 55 56 Be It Enacted by the Legislature of the State of Florida: 57 58 Section 1.Section 558.003, Florida Statutes, is amended to 59 read: 60 558.003Action; compliance.A claimant may not file an 61 action subject to this chapter without first complying with the 62 requirements of this chapter. If a claimant files an action 63 alleging a construction defect without first complying with the 64 requirements of this chapter, on timely motion by a party to the 65 action the court shall stay the action, without prejudice, and 66 the action may not proceed until the claimant has complied with 67 such requirements. The notice requirement is not intended to 68 interfere with an owners ability to complete a project that has 69 not been substantially completed. The notice is not required for 70 a project that has not reached the stage of completion of the 71 building or improvement. A deviation from initial plans and 72 specifications, including, but not limited to, substitution of 73 products or components, is not considered a construction defect 74 as defined in s. 558.002. 75 Section 2.Subsections (1) through (5) and (8) of section 76 558.004, Florida Statutes, are amended, and subsection (16) is 77 added to that section, to read: 78 558.004Notice and opportunity to repair. 79 (1)(a)In actions brought alleging a construction defect, 80 the claimant must shall, at least 60 days before filing any 81 action, or at least 180 120 days before filing an action 82 involving an association representing more than 20 parcels, 83 serve written notice of claim on the developer, contractor, 84 subcontractor, supplier, or design professional, as applicable, 85 which notice must shall refer to this chapter. If the 86 construction defect claim arises from work performed under a 87 contract, the written notice of claim must be served on the 88 person with whom the claimant contracted. 89 (b)The notice of claim must describe in reasonable detail 90 the nature of each alleged construction defect and, if known, 91 the damage or loss resulting from the defect. Based upon at 92 least a visual inspection by the claimant or its agents, the 93 notice of claim must identify the location of each alleged 94 construction defect sufficiently to enable the responding 95 parties to locate the alleged defect without undue burden. For 96 associations representing more than 20 parcels, the notice of 97 claim must describe with specificity the locations of and known 98 damages from the alleged defective condition, including, but not 99 limited to, those floors and units in the buildings where the 100 defective condition and damages are located. The claimant has no 101 obligation to perform destructive or other testing for purposes 102 of this notice. 103 (c)The claimant must attempt shall endeavor to serve the 104 notice of claim within 15 days after discovery of an alleged 105 defect, but the failure to serve notice of claim within 15 days 106 does not bar the filing of an action, subject to s. 558.003. 107 This subsection does not preclude a claimant from filing an 108 action sooner than 60 days, or 120 days as applicable, after 109 service of written notice as expressly provided in subsection 110 (6), subsection (7), or subsection (8). 111 (d)A notice of claim served pursuant to this chapter does 112 shall not toll any statute of repose period under chapter 95. 113 (2)Within 30 days after service of the notice of claim, or 114 within 75 50 days after service of the notice of claim involving 115 an association representing more than 20 parcels, the person 116 served with the notice of claim under subsection (1) is entitled 117 to perform a reasonable inspection of the property and common 118 elements, or of each unit subject to the claim to assess each 119 alleged construction defect. An associations right to access 120 property for either maintenance or repair includes the authority 121 to grant access for the inspection. The claimant shall provide 122 the person served with notice under subsection (1) and such 123 persons contractors or agents reasonable access to the property 124 during normal working hours to inspect the property to determine 125 the nature and cause of each alleged construction defect and the 126 nature and extent of any repairs, remediation, or replacements 127 necessary to remedy each defect. The person served with notice 128 under subsection (1) shall reasonably coordinate the timing and 129 manner of any and all inspections with the claimant to minimize 130 the number of inspections. The inspection may include 131 destructive testing by mutual agreement under the following 132 reasonable terms and conditions: 133 (a)If the person served with notice under subsection (1) 134 determines that destructive testing is necessary to determine 135 the nature and cause of the alleged defects, such person must 136 shall notify the claimant in writing. 137 (b)The notice must shall describe the destructive testing 138 to be performed, the person selected to do the testing, the 139 estimated anticipated damage and repairs to or restoration of 140 the property resulting from the testing, the estimated amount of 141 time necessary for the testing and to complete the repairs or 142 restoration, and the financial responsibility offered for 143 covering the costs of repairs or restoration. 144 (c)If the claimant promptly objects to the person selected 145 to perform the destructive testing, the person served with 146 notice under subsection (1) must shall provide the claimant with 147 a list of three qualified persons from which the claimant may 148 select one such person to perform the testing. The person 149 selected to perform the testing shall operate as an agent or 150 subcontractor of the person served with notice under subsection 151 (1) and shall communicate with, submit any reports to, and be 152 solely responsible to the person served with notice. 153 (d)The testing must shall be done at a mutually agreeable 154 time. 155 (e)The claimant or a representative of the claimant may be 156 present to observe the destructive testing. 157 (f)The destructive testing may shall not render the 158 property uninhabitable. 159 (g)There are shall be no construction lien rights under 160 part I of chapter 713 for the destructive testing caused by a 161 person served with notice under subsection (1) or for restoring 162 the area destructively tested to the condition existing before 163 prior to testing, except to the extent the owner contracts for 164 the destructive testing or restoration. 165 166 If the claimant refuses to agree and thereafter permit 167 reasonable destructive testing, the claimant has shall have no 168 claim for damages which could have been avoided or mitigated had 169 destructive testing been allowed when requested and had a 170 feasible remedy been promptly implemented. 171 (3)Within 10 days after service of the notice of claim, or 172 within 45 30 days after service of the notice of claim involving 173 an association representing more than 20 parcels, the person 174 served with notice under subsection (1) may serve a copy of the 175 notice of claim to each developer, contractor, subcontractor, 176 supplier, or design professional whom it reasonably believes is 177 responsible for each defect specified in the notice of claim and 178 must shall note the specific defect for which it believes the 179 particular developer, contractor, subcontractor, supplier, or 180 design professional is responsible. The notice described in this 181 subsection may not be construed as an admission of any kind. 182 Each such contractor, subcontractor, supplier, and design 183 professional may inspect the property as provided in subsection 184 (2). 185 (4)Within 15 days after service of a copy of the notice of 186 claim pursuant to subsection (3), or within 45 30 days after 187 service of the copy of the notice of claim involving an 188 association representing more than 20 parcels, the developer, 189 contractor, subcontractor, supplier, or design professional must 190 serve a written response to the person who served a copy of the 191 notice of claim. The written response must include a report, if 192 any, of the scope of any inspection of the property and the 193 findings and results of the inspection. The written response 194 must include one or more of the offers or statements specified 195 in paragraphs (5)(a)-(e), as chosen by the responding developer, 196 contractor, subcontractor, supplier, or design professional, 197 with all of the information required for that offer or 198 statement. 199 (5)Within 45 days after service of the notice of claim, or 200 within 90 75 days after service of a copy of the notice of claim 201 involving an association representing more than 20 parcels, the 202 person who was served the notice under subsection (1) must serve 203 a written response to the claimant. The response must shall be 204 served to the attention of the person who signed the notice of 205 claim, unless otherwise designated in the notice of claim. The 206 written response must provide: 207 (a)A written offer to remedy the alleged construction 208 defect at no cost to the claimant, a detailed description of the 209 proposed repairs necessary to remedy the defect, and a timetable 210 for the completion of such repairs; 211 (b)A written offer to compromise and settle the claim by 212 monetary payment, that will not obligate the persons insurer, 213 and a timetable for making payment; 214 (c)A written offer to compromise and settle the claim by a 215 combination of repairs and monetary payment, that will not 216 obligate the persons insurer, that includes a detailed 217 description of the proposed repairs and a timetable for the 218 completion of such repairs and making payment; 219 (d)A written statement that the person disputes the claim 220 and will not remedy the defect or compromise and settle the 221 claim; or 222 (e)A written statement that a monetary payment, including 223 insurance proceeds, if any, will be determined by the persons 224 insurer within 30 days after notification to the insurer by 225 means of serving the claim, which service must shall occur at 226 the same time the claimant is notified of this settlement 227 option, which the claimant may accept or reject. A written 228 statement under this paragraph may also include an offer under 229 paragraph (c), but such offer is shall be contingent upon the 230 claimant also accepting the determination of the insurer whether 231 to make any monetary payment in addition thereto. If the insurer 232 for the person served with the claim makes no response within 233 the 30 days following service, then the claimant is shall be 234 deemed to have met all conditions precedent to commencing an 235 action. 236 (8)(a)If the claimant timely and properly accepts the 237 offer to repair an alleged construction defect, the claimant 238 must shall provide the offeror and the offerors agents 239 reasonable access to the claimants property during normal 240 working hours to perform the repair by the agreed-upon timetable 241 as stated in the offer. If the offeror does not make the payment 242 or repair the defect within the agreed time and in the agreed 243 manner, except for reasonable delays beyond the control of the 244 offeror, including, but not limited to, weather conditions, 245 delivery of materials, claimants actions, or issuance of any 246 required permits, the claimant may, without further notice, 247 proceed with an action against the offeror based upon the claim 248 in the notice of claim. If the offeror makes payment or repairs 249 the defect within the agreed time and in the agreed manner, the 250 claimant is barred from proceeding with an action for the claim 251 described in the notice of claim or as otherwise provided in the 252 accepted settlement offer. 253 (b)For associations representing more than 20 parcels, if 254 the claimant timely and properly accepts the offer to repair an 255 alleged construction defect pursuant to paragraph (a), the 256 claimant must provide the offeror and the offerors agents, 257 including the developer, contractor, subcontractor, suppliers, 258 or design professional, reasonable access to the claimants 259 property, including common elements, association property, and 260 individual units, during normal working hours to perform the 261 repair according to the agreed-upon timetable as stated in the 262 offer. If the offeror does not make the payment or repair the 263 defect within the agreed time and in the agreed manner, except 264 for reasonable delays beyond the control of the offeror, 265 including, but not limited to, weather conditions, delivery of 266 materials, claimants actions, or issuance of any required 267 permits, the claimant may, without further notice, proceed with 268 an action against the offeror based upon the claim in the notice 269 of claim. If the offeror makes payment or repairs the defect 270 within the agreed-upon timetable and in the agreed manner, the 271 claimant is barred from proceeding with an action for the claim 272 described in the notice of claim or as otherwise provided in the 273 accepted settlement offer. 274 (16)If the person served with the notice of claim in 275 subsection (1) obtains the required building permits and 276 certificate of occupancy, and a local government or public 277 agency with authority to enforce the Florida Building Code 278 approves the plans, the construction project passes all required 279 inspections under the code. If there is no personal injury or 280 damage to property other than the property that is the subject 281 of the permits, plans, and inspections, this chapter does not 282 apply unless the person or party knew or should have known that 283 the material violation existed. 284 Section 3.Subsection (4) of section 558.005, Florida 285 Statutes, is amended, subsections (7), (8), and (9) are added to 286 that section, and subsection (6) of that section is reenacted, 287 to read: 288 558.005Contract provisions; application. 289 (4)At any time after the scope of the alleged defects has 290 been determined and sufficiently described by the claimant and 291 receipt of a notice of claim is acknowledged by the person to 292 whom notice is served or otherwise must be served under s. 293 558.004(1), a claimant and such person the person to whom notice 294 is served or otherwise must be served under s. 558.004(1) may 295 agree in writing to preaction mediation or otherwise alter the 296 procedure for the notice of claim process described in this 297 chapter. However, for associations that represent more than 20 298 parcels, if the scope of the alleged defects has been determined 299 and sufficiently described by the claimant and receipt of a 300 notice of claim is acknowledged by the person to whom notice is 301 served under s. 558.004(1), a claimant and such person must 302 agree in writing to preaction mediation. 303 (6)Notwithstanding s. 558.003, unless the parties agree 304 that this chapter does not apply, after October 1, 2009, any 305 written contract for improvement of real property entered into 306 between an owner and a contractor, or between an owner and a 307 design professional, must contain substantially the following 308 notice: ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE 309 NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLORIDA STATUTES. 310 The failure to include in the contract the notice provided in 311 this subsection does not subject the contracting owner, 312 contractor, or design professional to any penalty. The purpose 313 of the contractual notice is to promote awareness of the 314 procedure, not to be a penalty. 315 (7)Upon agreement between the parties that such persons 316 served are responsible for the costs associated with the alleged 317 defective condition, the persons served shall deposit sufficient 318 funds in an escrow account to be managed by an escrow agent for 319 the purpose of protecting and distributing the funds. The funds 320 may be released from escrow only as follows: 321 (a)For remediation or repairs of the agreed-upon defective 322 condition as determined by the settlement; or 323 (b)For remediation or repairs of known damages occurring 324 as a consequence of the agreed-upon defective condition as 325 determined by the settlement. 326 (8)The parties shall contract with a third-party licensed 327 engineer as defined in s. 471.005 or a construction management 328 entity as defined in s. 255.32 to confirm and certify the status 329 of completion of each identified and agreed-upon defective 330 condition and damages occurring as a consequence of the 331 defective condition. 332 (9)Upon completion of the remediation or repair of the 333 defective condition, any remaining funds in the escrow account 334 must be released by the agent back to the payor. 335 Section 4.This act shall take effect July 1, 2025.