Florida Senate - 2024                        COMMITTEE AMENDMENT
       Bill No. CS for CS for SB 966
       
       
       
       
       
       
                                Ì790218+Î790218                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: RS            .                                
                  02/27/2024           .                                
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       The Committee on Rules (Burgess) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (s) is added to subsection (1) of
    6  section 489.129, Florida Statutes, to read:
    7         489.129 Disciplinary proceedings.—
    8         (1) The board may take any of the following actions against
    9  any certificateholder or registrant: place on probation or
   10  reprimand the licensee, revoke, suspend, or deny the issuance or
   11  renewal of the certificate or registration, require financial
   12  restitution to a consumer for financial harm directly related to
   13  a violation of a provision of this part, impose an
   14  administrative fine not to exceed $10,000 per violation, require
   15  continuing education, or assess costs associated with
   16  investigation and prosecution, if the contractor, financially
   17  responsible officer, or business organization for which the
   18  contractor is a primary qualifying agent, a financially
   19  responsible officer, or a secondary qualifying agent responsible
   20  under s. 489.1195 is found guilty of any of the following acts:
   21         (s) Violating any provision of s. 489.150.
   22  
   23  For the purposes of this subsection, construction is considered
   24  to be commenced when the contract is executed and the contractor
   25  has accepted funds from the customer or lender. A contractor
   26  does not commit a violation of this subsection when the
   27  contractor relies on a building code interpretation rendered by
   28  a building official or person authorized by s. 553.80 to enforce
   29  the building code, absent a finding of fraud or deceit in the
   30  practice of contracting, or gross negligence, repeated
   31  negligence, or negligence resulting in a significant danger to
   32  life or property on the part of the building official, in a
   33  proceeding under chapter 120.
   34         Section 2. Section 489.150, Florida Statutes, is created to
   35  read:
   36         489.150Automatic transfer of express written warranties.—
   37         (1) As used in this section, the term:
   38         (a) “Builder” means the primary general contractor,
   39  building contractor, residential contractor, or roofing
   40  contractor of a home who has the responsibility to supervise,
   41  direct, manage, and control the contracting activities of the
   42  business organization with which he or she is connected and who
   43  has the responsibility to supervise, direct, manage, and control
   44  the construction work on a job for which he or she has obtained
   45  a building permit. Construction work includes, but is not
   46  limited to, construction of structural components.
   47         (b) “Express written warranty” means any contract or
   48  agreement whereby a builder undertakes to indemnify the warranty
   49  holder against the cost of repair or replacement, or actually
   50  furnishes repair or replacement, of any structural component or
   51  appliance of a home, necessitated by wear and tear or an
   52  inherent defect of any such structural component or appliance or
   53  necessitated by the failure of an inspection to detect the
   54  likelihood of any such loss.
   55         (c) “Home” means any residential real property, or
   56  manufactured or modular home, which is a single-family dwelling,
   57  duplex, triplex, or quadruplex.
   58         (d) “Indemnify” means to undertake repair or replacement of
   59  a home’s structural component, or pay compensation for such
   60  repair or replacement by cash, check, or other similar means,
   61  including, but not limited to, electronic means.
   62         (e) “Structural component” means one or more essential
   63  elements of a home, including the roof, foundation, basement,
   64  exterior or interior walls, electrical and plumbing systems,
   65  ceilings, or floors. The term includes any item covered in the
   66  terms of an express written warranty.
   67         (2) Except as provided in this section, if a builder is
   68  obligated under and provides a home purchaser an express written
   69  warranty on or after January 1, 2025, which indemnifies a home
   70  purchaser against the cost of repairing any of the structural
   71  components or any spray foam of a home and if such warranty has
   72  not become null and void or lawfully terminated under the terms
   73  of the express written warranty, the express written warranty
   74  and all indemnification rights, terms, and conditions thereunder
   75  shall automatically transfer to any subsequent purchaser of the
   76  home for the duration of the express written warranty. However,
   77  the express written warranty may not contain a term that
   78  terminates the warranty based on the subsequent purchase alone.
   79         (3)(a) An express written warranty provided on or after
   80  January 1, 2025, which is conditioned on the continuation of a
   81  home maintenance contract shall automatically transfer to a
   82  subsequent purchaser pursuant to subsection (2) unless the
   83  subsequent purchaser declines the assignment of the underlying
   84  home maintenance contract. If a subsequent purchaser accepts the
   85  assignment of the home maintenance contract, the subsequent
   86  purchaser is obligated to comply with the terms and conditions
   87  of the home maintenance contract, including, but not limited to,
   88  any requirement to pay consideration. A builder must provide
   89  notice of any amounts due under the home maintenance contract to
   90  a subsequent purchaser at the home address covered by such
   91  contract unless the subsequent purchaser notifies the builder of
   92  a preferred method of notification.
   93         (b) A home maintenance contract that is a separate
   94  agreement and is not conditioned on an express written warranty
   95  shall transfer to a subsequent purchaser only to the extent that
   96  the builder and subsequent purchaser agree to the assignment of
   97  the contract.
   98         (4) A subsequent purchaser who receives the benefit of a
   99  warranty being automatically transferred to him or her for the
  100  duration of the express written warranty pursuant to this
  101  section must notify the builder that he or she has purchased the
  102  home and therefore is the warrantee under the express written
  103  warranty. Such notice may be given at any time while the
  104  warranty remains in effect. A builder may not require in the
  105  terms of a warranty a shorter notice period than provided for in
  106  this subsection.
  107         (5) A builder may not charge a fee for the transfer of a
  108  warranty which occurs automatically pursuant to this section.
  109         (6) This section does not:
  110         (a) Create a warranty, create any new indemnification
  111  rights or obligations, modify or extend the commencement date or
  112  the duration, or expand the scope of coverage, of the express
  113  written warranty beyond the express written warranty’s terms.
  114         (b) Require a builder to be obligated under an express
  115  written warranty that has become null and void pursuant to the
  116  terms of the warranty.
  117         (c)Require a builder to indemnify a home purchaser or
  118  subsequent purchaser for any structural component, other
  119  component, item, or product of a home covered under the terms of
  120  an express written warranty which is substantially damaged or
  121  substantially modified by the home purchaser or a subsequent
  122  purchaser.
  123         (d) Require a builder who is obligated under and provides a
  124  home purchaser or subsequent purchaser an express written
  125  warranty to obtain a license under the Florida Insurance Code,
  126  and such practice does not constitute the transaction of
  127  insurance subject to the requirements of the code, unless
  128  otherwise required by law.
  129         (e) Require any subsequent purchaser to be bound by the
  130  terms of a home maintenance contract unless he or she agrees to
  131  the home maintenance contract being assigned to him or her.
  132         (f) Require a builder to compensate or reimburse a
  133  subsequent purchaser for the cost that a subsequent purchaser
  134  may incur for repairing a structural component of a home unless
  135  the express written warranty so provides or unless otherwise
  136  provided by law.
  137         Section 3. Section 634.301, Florida Statutes, is amended to
  138  read:
  139         634.301 Definitions.—Except as provided in s. 634.350, as
  140  used in this part, the term:
  141         (1) “Gross written premiums” means the total amount of
  142  premiums, paid for the entire period of the home warranty,
  143  inclusive of commissions, for which the association is obligated
  144  under home warranties issued.
  145         (2) “Home warranty” or “warranty” means any contract or
  146  agreement whereby a person undertakes to indemnify the warranty
  147  holder against the cost of repair or replacement, or actually
  148  furnishes repair or replacement, of any structural component or
  149  appliance of a home, necessitated by wear and tear or an
  150  inherent defect of any such structural component or appliance or
  151  necessitated by the failure of an inspection to detect the
  152  likelihood of any such loss. However, this part does not
  153  prohibit the giving of usual performance guarantees by either
  154  the builder of a home or the manufacturer or seller of an
  155  appliance, as long as no identifiable charge is made for such
  156  guarantee. This part does not permit the provision of
  157  indemnification against consequential damages arising from the
  158  failure of any structural component or appliance of a home,
  159  which practice constitutes the transaction of insurance subject
  160  to all requirements of the insurance code. This part does not
  161  apply to service contracts entered into between consumers and
  162  nonprofit organizations or cooperatives the members of which
  163  consist of condominium associations and condominium owners and
  164  which perform repairs and maintenance for appliances or
  165  maintenance of the residential property. This part does not
  166  apply to a contract or agreement offered by a warranty
  167  association in compliance with part III, provided such contract
  168  or agreement only relates to the systems and appliances of the
  169  covered residential property and does not cover any structural
  170  component of the residential property.
  171         (3) “Home warranty association” means any corporation or
  172  any other organization, other than an authorized insurer,
  173  issuing home warranties.
  174         (4) “Impaired” means having liabilities in excess of
  175  assets.
  176         (5) “Insolvent” means the inability of a corporation to pay
  177  its debts as they become due in the usual course of its
  178  business.
  179         (6) “Insurance code” means the Florida Insurance Code.
  180         (7) “Insurer” means any property or casualty insurer duly
  181  authorized to transact such business in this state.
  182         (8) “Listing period” means the period of time residential
  183  property is listed for sale with a licensed real estate broker,
  184  beginning on the date the residence is first listed for sale and
  185  ending on either the date the sale of the residence is closed,
  186  the date the residence is taken off the market, or the date the
  187  listing contract with the real estate broker expires.
  188         (9) “Net assets” means the amount by which the total
  189  statutory assets of an association exceed the total liabilities
  190  of the association.
  191         (10) “Person” includes an individual, company, corporation,
  192  association, insurer, agent, and every other legal entity.
  193         (11) “Premium” means the total consideration received, or
  194  to be received, by an insurer or home warranty association for
  195  or related to the issuance and delivery of any binder or
  196  warranty, including any charges designated as assessments or
  197  fees for policies, surveys, inspections, or service or any other
  198  charges.
  199         (12) “Sales representative” means any person with whom an
  200  insurer or home inspection or warranty association has a
  201  contract and who is utilized by such insurer or association for
  202  the purpose of selling or issuing home warranties. The term
  203  includes all employees of an insurer or association engaged
  204  directly in the sale or issuance of home warranties.
  205         (13) “Structural component” means the roof, plumbing
  206  system, electrical system, foundation, basement, walls,
  207  ceilings, or floors of a home.
  208         Section 4. Subsection (1) of section 634.312, Florida
  209  Statutes, is amended to read:
  210         634.312 Forms; required provisions and procedures.—
  211         (1) Except as provided in s. 634.350: All
  212         (a) Home warranty contracts are assignable in a consumer
  213  transaction and must contain a statement informing the purchaser
  214  of the home warranty of her or his right to assign it, at least
  215  within 15 days from the date the home is sold or transferred, to
  216  a subsequent retail purchaser of the home covered by the home
  217  warranty and all conditions on such right of transfer.
  218         (b) The home warranty company may charge an assignment fee
  219  not to exceed $40.
  220         (c) Home warranty assignments include, but are not limited
  221  to, the assignment from a home builder who purchased the home
  222  warranty to a subsequent home purchaser.
  223         Section 5. Section 634.331, Florida Statutes, is amended to
  224  read:
  225         634.331 Coverage of property for sale.—A home warranty may
  226  provide coverage of residential property during the listing
  227  period of such property for a period not to exceed 12 months,
  228  provided that the home warranty company charges the warranty
  229  purchaser a separately identifiable charge for the listing
  230  period coverage in an amount equal to at least 15 percent of the
  231  annual premium charged for the home warranty and the charge for
  232  such coverage is due at the earlier of the end of the listing
  233  period or the date the sale of the residential property is
  234  closed. The requirements in s. 634.350 apply to a home warranty
  235  that is transferred to the home purchaser.
  236         Section 6. Section 634.350, Florida Statutes, is created to
  237  read:
  238         634.350 Automatic transfer of home warranties.—
  239         (1) As used in this section, the term:
  240         (a) “Builder” means the primary general contractor,
  241  building contractor, residential contractor, or roofing
  242  contractor of a home who has the responsibility to supervise,
  243  direct, manage, and control the contracting activities of the
  244  business organization with which he or she is connected and who
  245  has the responsibility to supervise, direct, manage, and control
  246  the construction work on a job for which he or she has obtained
  247  a building permit. Construction work includes, but is not
  248  limited to, construction of structural components.
  249         (b) “Home” means any residential real property, or
  250  manufactured or modular home, which is a single-family dwelling,
  251  duplex, triplex, or quadruplex.
  252         (c) “Indemnify” means to undertake repair or replacement of
  253  a home’s structural component, or pay compensation for such
  254  repair or replacement by cash, check, or other similar means,
  255  including, but not limited to, electronic means.
  256         (d) “Structural component” means one or more essential
  257  elements of a home, including the roof, foundation, basement,
  258  exterior or interior walls, electrical and plumbing systems,
  259  ceilings, or floors. The term includes any item covered in the
  260  terms of a home warranty.
  261         (2) Except as provided in this section, if a builder
  262  purchases a home warranty from a licensed home warranty
  263  association on or after January 1, 2025, which covers any of the
  264  structural components or any spray foam of a home, and such
  265  warranty has not become null and void or lawfully terminated
  266  under the terms of the warranty, the home warranty and all
  267  indemnification rights, terms, and conditions thereunder shall
  268  automatically transfer to any subsequent purchaser of the home
  269  for the duration of the home warranty. However, the home
  270  warranty may not contain a term that terminates the warranty
  271  based on the subsequent purchase alone.
  272         (3) A subsequent purchaser who receives the benefit of a
  273  warranty being automatically transferred to him or her for the
  274  duration of the home warranty pursuant to this section must
  275  notify the home warranty association that he or she has
  276  purchased the home and therefore is the warrantee under the home
  277  warranty. Such notice may be given at any time while the
  278  warranty remains in effect. A home warranty association may not
  279  require in the terms of a warranty a shorter notice period than
  280  provided for in this subsection.
  281         (4) A subsequent purchaser may not be required to purchase
  282  or assume a contractual obligation for a home maintenance
  283  contract as a condition of a home warranty.
  284         (5) This section does not:
  285         (a) Create a warranty, create any new indemnification
  286  rights or obligations, modify or extend the commencement date or
  287  the duration, or expand the scope of coverage, of the home
  288  warranty beyond the home warranty’s terms.
  289         (b) Require a home warranty association to be obligated
  290  under a warranty that has become null and void pursuant to the
  291  terms of the warranty.
  292         (c) Require a home warranty association to indemnify a home
  293  purchaser or subsequent purchaser for any structural component,
  294  other component, item, or product of a home covered under the
  295  terms of an express written warranty which is substantially
  296  damaged or substantially modified by the home purchaser or a
  297  subsequent purchaser.
  298         Section 7. This act shall take effect July 1, 2024.
  299  
  300  ================= T I T L E  A M E N D M E N T ================
  301  And the title is amended as follows:
  302         Delete everything before the enacting clause
  303  and insert:
  304                        A bill to be entitled                      
  305         An act relating to transfers of home warranties;
  306         amending s. 489.129, F.S.; authorizing the
  307         Construction Industry Licensing Board to take certain
  308         disciplinary actions if a certain provision is
  309         violated; creating s. 489.150, F.S.; defining terms;
  310         providing that certain express written warranties and
  311         all rights, terms, and conditions thereunder
  312         automatically transfer to any subsequent purchaser
  313         under certain circumstances; requiring that certain
  314         express written warranties automatically transfer to
  315         subsequent purchasers; providing an exception;
  316         providing that the subsequent purchaser is obligated
  317         to comply with the terms and conditions of the home
  318         maintenance contract under certain circumstances;
  319         requiring the builder to provide notice of amounts due
  320         under the home maintenance contract to a subsequent
  321         purchaser in a specified manner; providing an
  322         exception; providing that certain home maintenance
  323         contracts shall transfer to a subsequent purchaser
  324         only under certain conditions; requiring certain
  325         subsequent purchasers to make a certain notification
  326         to the builder at a specified time; prohibiting a
  327         builder from requiring a shorter notice period;
  328         prohibiting a builder from charging a fee for certain
  329         transfers of warranties; providing construction;
  330         amending ss. 634.301 and 634.312, F.S.; conforming
  331         provisions to changes made by the act; amending s.
  332         634.331, F.S.; revising when certain charges for a
  333         home warranty are due; providing applicability;
  334         creating s. 634.350, F.S.; defining terms; providing
  335         that home warranties and all rights, terms, and
  336         conditions thereunder automatically transfer to any
  337         subsequent purchaser under certain circumstances;
  338         prohibiting a home warranty from containing a certain
  339         term; requiring certain subsequent purchasers to make
  340         a certain notification to the home warranty
  341         association within a specified timeframe; prohibiting
  342         a home warranty association from requiring a shorter
  343         notice period; prohibiting a subsequent purchaser from
  344         being required to purchase or assume certain
  345         contractual obligations; providing construction;
  346         providing an effective date.