Florida Senate - 2012 CS for CS for SB 1196 By the Committees on Judiciary; and Community Affairs; and Senator Bennett 590-03255-12 20121196c2 1 A bill to be entitled 2 An act relating to residential construction 3 warranties; creating s. 553.835, F.S.; providing 4 legislative findings; providing legislative intent to 5 affirm the limitations to the doctrine of implied 6 warranty of fitness and merchantability or 7 habitability associated with the construction and sale 8 of a new home; providing a definition; prohibiting a 9 cause of action in law or equity based upon the 10 doctrine of implied warranty of fitness and 11 merchantability or habitability for offsite 12 improvements; providing that the existing rights of 13 purchasers of homes or homeowners’ associations to 14 pursue certain causes of action are not altered or 15 limited; providing for applicability of the act; 16 providing for severability; providing an effective 17 date. 18 19 WHEREAS, the Legislature recognizes and agrees with the 20 limitations on the applicability of the doctrine of implied 21 warranty of fitness and merchantability or habitability for a 22 new home as established in the seminal cases of Gable v. Silver, 23 258 So.2d 11 (Fla. 4th DCA 1972) adopted and cert. dism, 264 24 So.2d 418 (Fla. 1972); Conklin v. Hurley, 428 So.2d 654 (Fla. 25 1983); and Port Sewall Harbor & Tennis Club Owners Ass’n v. 26 First Fed. S. & L. Ass’n., 463 So.2d 530 (Fla. 4th DCA 1985), 27 and does not wish to expand any prospective rights, 28 responsibilities, or liabilities resulting from these decisions, 29 and 30 WHEREAS, the recent decision by the Fifth District Court of 31 Appeal rendered in October of 2010, in Lakeview Reserve 32 Homeowners et. al. v. Maronda Homes, Inc., et. al., 48 So.3d 902 33 (Fla. 5th DCA, 2010), expands the doctrine of implied warranty 34 of fitness and merchantability or habitability for a new home to 35 the construction of roads, drainage systems, retention ponds, 36 and underground pipes, which the court described as essential 37 services, supporting a new home, and 38 WHEREAS, the Legislature finds, as a matter of public 39 policy, that the Maronda case goes beyond the fundamental 40 protections that are necessary for a purchaser of a new home and 41 that form the basis for imposing an implied warranty of fitness 42 and merchantability or habitability for a new home, and creates 43 uncertainty in the state’s fragile real estate and construction 44 industry, and 45 WHEREAS, it is the intent of the Legislature to reject the 46 decision by the Fifth District Court of Appeal in the Maronda 47 case insofar as it expands the doctrine of implied warranty and 48 fitness and merchantability or habitability for a new home to 49 include essential services as defined by the court, NOW 50 THEREFORE, 51 52 Be It Enacted by the Legislature of the State of Florida: 53 54 Section 1. Section 553.835, Florida Statutes, is created to 55 read: 56 553.835 Implied warranties.— 57 (1) The Legislature finds that the courts have reached 58 different conclusions concerning the scope and extent of the 59 common law doctrine of implied warranty of fitness and 60 merchantability or habitability for improvements immediately 61 supporting the structure of a new home, which creates 62 uncertainty in the state’s fragile real estate and construction 63 industry. 64 (2) It is the intent of the Legislature to affirm the 65 limitations to the doctrine of implied warranty of fitness and 66 merchantability or habitability associated with the construction 67 and sale of a new home. 68 (3) As used in this section, the term “offsite improvement” 69 means a street, road, driveway, sidewalk, drainage, utilities, 70 or any other improvement or structure that: 71 (a) Is not located on or under the lot on which a new home 72 is constructed, excluding the improvements that are shared by 73 and are part of the overall structure of two or more separately 74 owned homes that are adjoined or attached whereby the 75 improvements affect the fitness and merchantability or 76 habitability of one or more of the other adjoining structures; 77 or 78 (b) Is located on or under the lot but does not immediately 79 and directly support the fitness and merchantability or 80 habitability of the new home itself. 81 (4) There is no cause of action in law or equity available 82 to a purchaser of a home or to a homeowners’ association based 83 upon the doctrine or theory of implied warranty of fitness and 84 merchantability or habitability for damages to offsite 85 improvements. However, this section does not alter or limit the 86 existing rights of purchasers of homes or homeowners’ 87 associations to pursue any other cause of action arising from 88 defects in offsite improvements based upon contract, tort, or 89 statute, including, but not limited to, ss. 718.203 and 719.203. 90 Section 2. If any provision of the act or its application 91 to any person or circumstance is held invalid, the invalidity 92 does not affect other provisions or applications of the act 93 which can be given effect without the invalid provision or 94 application, and to this end the provisions of this act are 95 severable. 96 Section 3. This act shall take effect July 1, 2012, and 97 applies to all cases accruing before, pending on, or filed after 98 that date.