Senate Bill sb1286c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                           CS for SB 1286

    By the Committee on Regulated Industries; and Senator Bennett





    315-2165-03

  1                      A bill to be entitled

  2         An act relating to construction defects;

  3         providing legislative findings and declaration;

  4         providing definitions; providing for the

  5         dismissal of dwelling actions under certain

  6         circumstances; providing for notice and

  7         opportunity to repair; providing prerequisites

  8         to bringing an action based on alleged

  9         construction defects; providing for

10         inspections; providing evidentiary

11         presumptions; providing for tolling a statute

12         of limitations; providing for certain

13         notifications to the purchaser at the time of

14         sale; providing for requirements before

15         condominium, cooperative, or homeowners'

16         associations may bring lawsuits relating to

17         construction defects; creating a crime relating

18         to instigating litigation; providing penalties;

19         requiring use of a contractor to perform

20         destructive testing; providing responsibility

21         for repairing damage caused by testing;

22         providing severability; providing an effective

23         date.

24  

25  Be It Enacted by the Legislature of the State of Florida:

26  

27         Section 1.  Legislative findings and declaration.--The

28  Legislature finds, declares, and determines that an effective

29  alternative dispute resolution mechanism in certain

30  construction defect matters should involve the claimant filing

31  a notice of claim with the contractor, subcontractor,

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1  supplier, or design professional that the claimant asserts is

 2  responsible for the defect, and provide the contractor,

 3  subcontractor, supplier, or design professional with an

 4  opportunity to resolve the claim without resort to further

 5  legal process.

 6         Section 2.  Definitions.--As used in this act, the

 7  term:

 8         (1)  "Action" means any civil action or arbitration

 9  proceeding for damages or indemnity asserting a claim for

10  damage to or loss of a dwelling or personal property caused by

11  an alleged construction defect.

12         (2)  "Association" has the same meaning as set forth in

13  section 718.103(2), section 719.103(2), section 720.301(7), or

14  section 723.025, Florida Statutes.

15         (3)  "Claimant" means a homeowner, including a

16  subsequent purchaser, tenant, or association who asserts a

17  claim against a contractor, subcontractor, supplier, or design

18  professional concerning a defect in the design, construction,

19  condition, or sale of a dwelling or in the remodel of a

20  dwelling. The term "claimant" does not include a contractor,

21  subcontractor, supplier, or design professional.

22         (4)  "Construction defect" means a deficiency in, or a

23  deficiency arising out of, the design, specifications,

24  surveying, planning, supervision, observation of construction,

25  or construction or remodeling of a dwelling resulting from any

26  of the following:

27         (a)  Defective material, products, or components used

28  in the construction or remodeling of a dwelling;

29         (b)  A violation of the applicable codes in effect at

30  the time of construction or remodeling of a dwelling;

31  

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1         (c)  A failure of the design of a dwelling to meet the

 2  applicable professional standards of care at the time of

 3  governmental approval; or

 4         (d)  A failure to construct or remodel a dwelling in

 5  accordance with accepted trade standards for good and

 6  workmanlike construction at the time of construction. Except

 7  to the extent the claimant's contract for construction or

 8  remodeling requires compliance with standards that exceed

 9  those set forth in the applicable codes in effect at the time

10  of construction or remodeling, compliance with the applicable

11  codes in effect at the time of construction or remodeling

12  shall conclusively establish construction or remodeling in

13  accordance with accepted trade standards for good and

14  workmanlike construction, with respect to all matters

15  specified in those codes.

16         (5)  "Contractor" means any person, firm, partnership,

17  corporation, association, or other organization that is

18  legally engaged in the business of designing, developing,

19  constructing, manufacturing, selling, or remodeling of a

20  dwelling or attachments thereto.

21         (6)  "Design professional" means a person licensed in

22  the state as an architect, interior designer, landscape

23  architect, engineer, or surveyor.

24         (7)  "Dwelling" means a single-family house,

25  manufactured or modular home, duplex, or multifamily unit

26  building designed for residential use and includes common

27  areas and improvements that are owned or maintained by an

28  association or by members of an association.  A dwelling

29  includes the systems, other components, and improvements that

30  are part of a single-family house, manufactured or modular

31  

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1  home, duplex, or multifamily residential building at the time

 2  of completion of construction.

 3         (8)  "Service" means personal service or delivery by

 4  certified mail to the last known address of the addressee.

 5         (9)  "Subcontractor" means a contractor who performs

 6  work on behalf of another contractor in the construction or

 7  remodeling of a dwelling.

 8         (10)  "Supplier" means a person who provides materials,

 9  equipment, or other supplies for the construction or

10  remodeling of a dwelling.

11         Section 3.  Action; dismissal without prejudice.--If a

12  claimant files an action without first complying with the

13  provisions of this act, on motion by a party to the action,

14  the court shall dismiss the action, without prejudice, and the

15  action may not be refiled until the claimant has complied with

16  the requirements of this act.

17         Section 4.  Notice and opportunity to repair.--

18         (1)  In every action brought against a contractor,

19  subcontractor, supplier, or design professional related to an

20  alleged construction defect, the claimant shall, no later than

21  60 days before filing an action, serve written notice of claim

22  on the contractor. The notice of claim must describe the claim

23  in reasonable detail sufficient to determine the general

24  nature of each alleged construction defect and a description

25  of the damage or loss resulting from each alleged construction

26  defect, if known. The claimant shall endeavor to serve the

27  notice of claim within 15 days after the claimant's discovery

28  of the alleged construction defect, but the claimant's failure

29  to serve the notice of claim within that 15-day period does

30  not bar the filing of an action under section 3 of this act if

31  

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1  the claimant complies with the other requirements of this

 2  section.

 3         (2)  Within 5 business days after service of the notice

 4  of claim required in subsection (1), the contractor,

 5  subcontractor, supplier, or design professional may inspect

 6  the dwelling to assess each alleged construction defect. The

 7  claimant shall provide the contractor, subcontractor,

 8  supplier, or design professional and its contractors or agents

 9  reasonable access to the claimant's dwelling during normal

10  working hours to inspect the dwelling to determine the nature

11  and cause of each alleged construction defect and the nature

12  and extent of any repairs or replacements necessary to remedy

13  each alleged construction defect. The inspection may include

14  destructive testing. Prior to performing any destructive

15  testing, the contractor, subcontractor, supplier, or design

16  professional who desires to perform the testing shall notify

17  the claimant of the type of testing to be performed, the

18  anticipated damage to the dwelling which will be caused by the

19  testing, and the anticipated repairs that will be necessary to

20  repair any damage to the dwelling caused by the testing. The

21  contractor, subcontractor, supplier, or design professional

22  performing the testing shall be responsible, at his or her

23  sole expense, for repairing any damage to the dwelling caused

24  by the testing.

25         (3)  Within 10 days after service of the notice of

26  claim required in subsection (1), the contractor,

27  subcontractor, supplier, or design professional shall forward

28  a copy of the notice of claim to each subcontractor, supplier,

29  and design professional who it reasonably believes is

30  responsible for each alleged construction defect specified in

31  the notice of claim and shall include with the notice the

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1  specific alleged construction defect for which it believes the

 2  subcontractor, supplier, or design professional is

 3  responsible. Each such subcontractor, supplier, and design

 4  professional may inspect the dwelling as provided in

 5  subsection (2) within 5 business days after service of a copy

 6  of the notice of claim to such subcontractor, supplier, or

 7  design professional under this subsection.

 8         (4)  On the request of the contractor, subcontractor,

 9  supplier, or design professional who has received a notice of

10  claim pursuant to subsection (1) or subsection (3), the

11  claimant shall provide to the contractor, subcontractor,

12  supplier, or design professional any evidence that depicts the

13  nature and cause of the alleged construction defect and the

14  nature and extent of repairs necessary to remedy the alleged

15  construction defect, including expert reports, photographs,

16  and videotapes, if that evidence would be discoverable under

17  the Florida Rules of Civil Procedure. However, this section

18  does not require the claimant to obtain or create any such

19  evidence.

20         (5)  Within 5 business days following service of a copy

21  of the notice of claim to a subcontractor, supplier, or design

22  professional pursuant to subsection (3), each subcontractor,

23  supplier, or design professional who has been served a copy of

24  the notice of claim shall serve a written response to the

25  contractor, subcontractor, supplier, or design professional

26  who served a copy of the notice of claim. The written response

27  shall include a report of the scope of the inspection of the

28  dwelling, if any, the findings and results of the inspection,

29  a statement of whether the subcontractor, supplier, or design

30  professional is willing to make repairs to the dwelling or

31  whether he or she disputes the claim, a description of any

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1  repairs he or she is willing to make to remedy the alleged

 2  construction defect, and a timetable for the completion of

 3  such repairs.

 4         (6)  Within 25 days after service of the notice of

 5  claim required in subsection (1), each contractor,

 6  subcontractor, supplier, or design professional that has

 7  received a notice of claim from the claimant shall serve a

 8  written response on the claimant. The written response must

 9  provide:

10         (a)  A written offer to remedy the alleged construction

11  defect at no cost to the claimant, including a report of the

12  scope of the inspection, the findings and results of the

13  inspection, a description of the repairs necessary to remedy

14  the alleged construction defect, and a timetable for the

15  completion of such repairs;

16         (b)  A written offer to compromise and settle the claim

17  by monetary payment to be paid within 30 days after the

18  claimant's acceptance of the offer; or

19         (c)  A written statement that the contractor,

20  subcontractor, supplier, or design professional disputes the

21  claim and will not proceed further to remedy the alleged

22  construction defect or to compromise and settle the claim.

23  

24  If the contractor, subcontractor, supplier, or design

25  professional's written response offers to remedy the alleged

26  construction defect pursuant to paragraph (a) or compromise

27  and settle the claim by monetary payment pursuant to paragraph

28  (b), the written response shall contain a statement that the

29  claimant shall be deemed to have accepted the offer if, within

30  15 days following service of such written response, the

31  claimant does not serve a written rejection of the offer on

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1  the contractor, subcontractor, supplier, or design

 2  professional.

 3         (7)  If the contractor, subcontractor, supplier, or

 4  design professional disputes the claim pursuant to subsection

 5  (6)(c) and will neither remedy the alleged construction defect

 6  nor compromise and settle the claim, or does not respond to

 7  the claimant's notice of claim within the time stated in

 8  subsection (6), the claimant may, without further notice,

 9  bring an action against the contractor, subcontractor,

10  supplier, or design professional for the claim described in

11  the notice of claim.

12         (8)  If the claimant intends to reject a settlement

13  offer made by the contractor, subcontractor, supplier, or

14  design professional pursuant to paragraph (6)(a) or paragraph

15  (6)(b), the claimant shall serve written notice of the

16  claimant's rejection on the contractor, subcontractor,

17  supplier, or design professional within 15 days following

18  service of the settlement offer. The claimant's rejection

19  shall contain the settlement offer with the word "rejected"

20  printed on the settlement offer. After service of the

21  rejection required by this subsection, the claimant may bring

22  an action against the contractor, subcontractor, supplier, or

23  design professional for the claims described in the notice of

24  claim required by subsection (1) without further notice.

25         (9)  If the claimant accepts the offer of a contractor,

26  subcontractor, supplier, or design professional made pursuant

27  to paragraph (6)(a) or paragraph (6)(b) and the contractor,

28  subcontractor, supplier, or design professional does not

29  proceed to make the monetary payment or repair the alleged

30  construction defect within the agreed timetable and in the

31  agreed manner, the claimant may, without further notice, bring

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1  an action against the contractor, subcontractor, supplier, or

 2  design professional for the claim described in the notice of

 3  claim required by subsection (1). If a claimant accepts a

 4  contractor, subcontractor, supplier, or design professional's

 5  offer made pursuant to paragraph (6)(a) or paragraph (6)(b)

 6  and the contractor, subcontractor, supplier, or design

 7  professional proceeds to make the monetary payment or repair

 8  the alleged construction defect within the agreed time and in

 9  the agreed manner, the claimant shall thereafter be barred

10  from bringing an action against the contractor, subcontractor,

11  supplier, or design professional for the claim described in

12  the notice of claim required by subsection (1).

13         (10)  If the claimant accepts the offer of a

14  contractor, subcontractor, supplier, or design professional to

15  repair an alleged construction defect pursuant to paragraph

16  (6)(a), the claimant shall provide the contractor,

17  subcontractor, supplier, or design professional and its

18  contractors or other agents reasonable access to the

19  claimant's dwelling during normal working hours to perform and

20  complete the repair by the agreed timetable.

21         (11)  The failure of a claimant or a contractor,

22  subcontractor, supplier, or design professional to follow the

23  procedures set forth in this section is admissible in an

24  action. However, this section does not prohibit or limit the

25  claimant from making any necessary emergency repairs to the

26  claimant's dwelling. In addition, the offer of a contractor,

27  subcontractor, supplier, or design professional to remedy an

28  alleged construction defect or to compromise and settle the

29  claim by monetary payment pursuant to subsection (5),

30  paragraph (6)(a), or paragraph (6)(b) does not constitute an

31  

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1  admission of liability with respect to the alleged

 2  construction defect.

 3         (12)  A claimant's written notice of claim under

 4  subsection (1) tolls the applicable statute of limitations

 5  until the later of:

 6         (a)  Sixty days after the contractor, subcontractor,

 7  supplier, or design professional receives the notice of claim;

 8  or

 9         (b)  Thirty days after the end of the repair timetable

10  stated in the offer of a contractor, subcontractor, supplier,

11  or design professional made pursuant to paragraph (6)(a) if

12  the claimant has accepted the offer. By stipulation of the

13  parties, the foregoing period may be extended and the statute

14  of limitations is tolled during the extension.

15         (13)  The procedures set forth in this section apply to

16  each alleged construction defect. However, a claimant may

17  include multiple alleged construction defects in one notice of

18  claim pursuant to subsection (1).

19         (14)  Sections 1 through 4 of this act do not:

20         (a)  Bar or limit any rights, causes of action, or

21  theories on which liability may be based except as

22  specifically provided in this act;

23         (b)  Bar or limit any defense, or create any new

24  defense, except as specifically provided in this act; or

25         (c)  Create any new rights, causes of action, or

26  theories on which liability may be based.

27         Section 5.  Contract of sale; provisions.--

28         (1)  Upon entering into a contract for sale,

29  construction, or remodel of a dwelling, the contractor,

30  subcontractor, supplier, or design professional shall provide

31  notice to the owner of the dwelling of the contractor,

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1  subcontractor, supplier, or design professional's right to

 2  offer to cure construction defects or pay to settle alleged

 3  construction defects before a claimant may commence an action

 4  against the contractor, subcontractor, supplier, or design

 5  professional. Such notice must be conspicuous and may be

 6  included as part of the underlying contract.

 7         (2)  The notice required by subsection (1) must be in

 8  substantially the following form:

 9  

10         FLORIDA LAW CONTAINS IMPORTANT REQUIREMENTS YOU

11         MUST FOLLOW BEFORE YOU MAY FILE A LAWSUIT FOR

12         DEFECTIVE CONSTRUCTION AGAINST A CONTRACTOR,

13         SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL

14         FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR

15         HOME. SIXTY DAYS BEFORE YOU FILE YOUR LAWSUIT,

16         YOU MUST DELIVER TO THE CONTRACTOR,

17         SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL

18         A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS

19         YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR

20         CONTRACTOR AND ANY SUBCONTRACTORS, SUPPLIERS,

21         OR DESIGN PROFESSIONALS THE OPPORTUNITY TO

22         INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND

23         MAKE AN OFFER TO REPAIR OR PAY FOR THE ALLEGED

24         CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO

25         ACCEPT ANY OFFER MADE BY THE CONTRACTOR OR ANY

26         SUBCONTRACTORS, SUPPLIERS, OR DESIGN

27         PROFESSIONALS. THERE ARE STRICT DEADLINES AND

28         PROCEDURES UNDER FLORIDA LAW, AND FAILURE TO

29         FOLLOW THEM MAY AFFECT YOUR ABILITY TO FILE A

30         LAWSUIT.

31  

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1         Section 6.  Actions of associations.--

 2         (1)  A person may not provide or offer to provide

 3  anything of value to a property manager of a condominium

 4  association as defined in section 718.103, Florida Statutes, a

 5  cooperative association as defined in section 719.103, Florida

 6  Statutes, a homeowners' association as defined in section

 7  720.301 or section 723.075, Florida Statutes, or to a member

 8  or officer of the board of directors of such association to

 9  induce the property manager, member, or officer to either

10  encourage or discourage the filing of a claim by the

11  association for damages arising from a construction defect.

12         (2)  A property manager of a condominium association as

13  defined in section 718.103 or section 723.075, Florida

14  Statutes, a cooperative association as defined in section

15  719.103, Florida Statutes, or a homeowners' association as

16  defined in section 720.301, Florida Statutes, may not accept

17  anything of value given to him or her in exchange for

18  encouraging or discouraging the filing of a claim by the

19  association that he or she manages for damages arising from a

20  construction defect.

21         (3)  A member or officer of the board of directors of a

22  condominium association as defined in section 718.103, Florida

23  Statutes, a cooperative association as defined in section

24  719.103, Florida Statutes, or a homeowners' association as

25  defined in section 720.301 or section 723.075, Florida

26  Statutes, may not accept anything of value given to him or her

27  in exchange for encouraging or discouraging the filing of a

28  claim by the association of which he or she is a member or

29  officer for damages arising from a construction defect.

30         (4)  A person who willfully violates subsection (1),

31  subsection (2), or subsection (3) commits a misdemeanor of the

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1  second degree, punishable as provided for in section 775.082

 2  or section 775.083, Florida Statutes.

 3         (5)  An association or an attorney for an association

 4  may not employ a person to perform destructive tests to

 5  determine any damage or injury to a unit, common element, or

 6  limited common element caused by a constructional defect

 7  unless:

 8         (a)  The person is licensed as a contractor;

 9         (b)  The association has obtained the prior written

10  approval of each unit's owner whose unit or interest in the

11  common element or limited common element will be affected by

12  such testing;

13         (c)  The person performing the tests has provided a

14  written schedule for repairs;

15         (d)  The person performing the tests is required to

16  repair all damage resulting from such tests in accordance with

17  state laws and local ordinances relating thereto; and

18         (e)  The association or the person so employed obtains

19  all permits required to conduct such tests and to repair any

20  damage resulting from such tests.

21         (6)  If an action is brought by an association to

22  recover damages resulting from construction defects in any of

23  the units, common elements, or limited common elements of the

24  common-interest community, the attorney representing the

25  association shall provide to the board of directors of the

26  association and to each unit's owner a statement that

27  includes, in reasonable detail:

28         (a)  The defects and damages or injuries to the units,

29  common elements, or limited common elements;

30         (b)  The cause of the defects, if the cause is known;

31  

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1         (c)  The nature and extent that is known of the damage

 2  or injury resulting from the defects;

 3         (d)  The location of each defect within the units,

 4  common elements, or limited common elements, if known;

 5         (e)  A reasonable estimate of the cost of the action,

 6  including reasonable attorney's fees; and

 7         (f)  An explanation of the potential benefits of the

 8  action and the potential adverse consequences if the

 9  association does not commence the action or if the outcome is

10  not favorable to the association.

11         (7)  An association may commence an action only upon a

12  vote or written agreement of the owners of the units to which

13  at least a majority of the votes of the members of the

14  association are allocated. In such a case, the association

15  shall provide written notice to the owner of each unit of the

16  meeting at which the commencement of an action is to be

17  considered or action is to be taken at least 21 calendar days

18  before the meeting.

19         Section 7.  If any provision of this act or the

20  application thereof to any person or circumstance is held

21  invalid, the invalidity does not affect other provisions or

22  applications of this act which can be given effect without the

23  invalid provision or application, and to this end the

24  provisions of this act are declared severable.

25         Section 8.  This act shall take effect upon becoming a

26  law.

27  

28  

29  

30  

31  

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                           CS for SB 1286
    315-2165-03




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                             SB 1286

 3                                 

 4  The Committee Substitute clarifies the legislative findings
    and declaration. It clarifies that the definition of an action
 5  applies to damages to or loss of a dwelling; and it makes
    technical changes to the definitions of contractor and
 6  dwelling.  It requires the construction professional to notify
    a homeowner of the need for destructive testing, the damage
 7  and repairs that will be caused, and that the construction
    professional will fully repair any and all damage caused by
 8  the testing.  It clarifies that the construction professional
    has a right to inspection within 5 business days after service
 9  of the notice of claim.  It clarifies that the claimant is not
    required to obtain or create any evidence.  It clarifies that
10  a construction professional also has 5 business days to
    inspect the dwelling after receiving a copy of the notice of
11  claim from another construction professional.  It changes the
    number of days that a construction professional has to respond
12  to the claimant from 20 to 25 days, requires payment to the
    claimant within 30 days of the claimant's acceptance of any
13  offer, and requires that the claimant shall be deemed to have
    accepted an offer to settle if the claimant does not reject
14  the offer within 15 days of its receipt.  It clarifies that
    the claimant may proceed with an action after the claimant
15  writes the word "rejected" on the offer and serves the
    construction professional with the rejection.  It provides
16  that if a claimant accepts an offer to settle, the claimant is
    barred from bringing an action against the construction
17  professional for the claim described in the notice of claim.
    It clarifies that the bill does not bar, limit, or create any
18  rights, causes of action, or theories of liability.

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  15

CODING: Words stricken are deletions; words underlined are additions.