The Florida Senate

¹558.004  Notice and opportunity to repair.--

(1)  In actions brought against a contractor, subcontractor, supplier, or design professional related to an alleged construction defect, the claimant shall, no later than 60 days before filing an action, serve written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable. The notice of claim must describe the claim in reasonable detail sufficient to determine the general nature of each alleged defect and a description of the damage or loss resulting from the defect, if known. The claimant shall endeavor to serve the notice of claim within 15 days after discovery of an alleged defect, but the failure to serve notice of claim within 15 days does not bar the filing of an action, subject to s. 558.003

(2)  Within 5 business days after service of the notice of claim, the contractor, subcontractor, supplier, or design professional may inspect the dwelling to assess each alleged construction defect. The claimant shall provide the contractor, subcontractor, supplier, or design professional and its contractors or agents reasonable access to the dwelling during normal working hours to inspect the dwelling to determine the nature and cause of each alleged construction defect and the nature and extent of any repairs or replacements necessary to remedy each defect. The inspection may include destructive testing by mutual agreement. Prior to performing any destructive testing, the person who desires to perform the testing shall notify the claimant in writing of the type of testing to be performed, the anticipated damage to the dwelling which will be caused by the testing, and the anticipated repairs that will be necessary to repair any damage caused by the testing. The person performing the testing is responsible for repairing any damage to the dwelling caused by the testing.

(3)  Within 10 days after service of the notice of claim, the contractor, subcontractor, supplier, and design professional must forward a copy of the notice of claim to each subcontractor, supplier, or design professional whom it reasonably believes is responsible for each defect specified in the notice of claim and shall note the specific defect for which it believes the particular subcontractor, supplier, or design professional is responsible. Each such subcontractor, supplier, and design professional may inspect the dwelling as provided in subsection (2) within 5 business days after receiving a copy of the notice.

(4)  Within 5 business days after receiving a copy of the notice of claim, the subcontractor, supplier, or design professional must serve a written response to the contractor, subcontractor, supplier, or design professional who served a copy of the notice of claim. The written response shall include a report of the scope of any inspection of the dwelling, the findings and results of the inspection, a statement of whether the subcontractor, supplier, or design professional is willing to make repairs to the dwelling or whether he or she disputes the claim, a description of any repairs he or she is willing to make to remedy the alleged construction defect, and a timetable for the completion of such repairs.

(5)  Within 25 days after receiving the notice of claim, each contractor, subcontractor, supplier, or design professional must serve a written response to the claimant. The written response must provide:

(a)  A written offer to remedy the alleged construction defect at no cost to the claimant, including a report of the scope of the inspection, the findings and results of the inspection, a detailed description of the repairs necessary to remedy the defect, and a timetable for the completion of such repairs;

(b)  A written offer to compromise and settle the claim by monetary payment to be paid within 30 days after the claimant's acceptance of the offer; or

(c)  A written statement that the contractor, subcontractor, supplier, or design professional disputes the claim and will not remedy the defect or compromise and settle the claim.

(6)  If the contractor, subcontractor, supplier, or design professional offers to remedy the alleged construction defect or compromise and settle the claim by monetary payment, the written response must contain a statement that the claimant shall be deemed to have accepted the offer if, within 15 days, or 45 days for an association, after service to the written response, the claimant does not serve a written rejection of the offer on the contractor, subcontractor, supplier, or design professional.

(7)  If the contractor, subcontractor, supplier, or design professional disputes the claim and will neither remedy the defect nor compromise and settle the claim, or does not respond to the claimant's notice of claim within the time provided in subsection (5), the claimant may, without further notice, proceed with an action against the contractor, subcontractor, supplier, or design professional for the claim described in the notice of claim.

(8)  A claimant who rejects a settlement offer made by the contractor, subcontractor, supplier, or design professional must serve written notice of such rejection on the contractor, subcontractor, supplier, or design professional within 15 days, or 45 days for an association, after service of the settlement offer. The claimant's rejection must contain the settlement offer with the word "rejected" printed on it. After service of the rejection, the claimant may proceed with an action against the contractor, subcontractor, supplier, or design professional for the claims in the notice of claim without further notice.

(9)  If the claimant accepts the offer of a contractor, subcontractor, supplier, or design professional and the contractor, subcontractor, supplier, or design professional does not make the payment or repair the defect within the agreed time and in the agreed manner, the claimant may, without further notice, proceed with an action against the contractor, subcontractor, supplier, or design professional for the claim in the notice of claim. If a claimant accepts a contractor's, subcontractor's, supplier's, or design professional's offer and the contractor, subcontractor, supplier, or design professional makes payment or repairs the defect within the agreed time and in the agreed manner, the claimant is barred from proceeding with an action against the contractor, subcontractor, supplier, or design professional for the claim described in the notice of claim.

(10)  If the claimant accepts the offer of a contractor, subcontractor, supplier, or design professional to repair an alleged construction defect, the claimant shall provide the contractor, subcontractor, supplier, or design professional and its contractors or other agents reasonable access to the claimant's dwelling during normal working hours to perform the repair by the agreed-upon timetable as stated in the offer.

(11)  The failure of a claimant or a contractor, subcontractor, supplier, or design professional to follow the procedures in this section is admissible in an action. However, this section does not prohibit or limit the claimant from making any necessary emergency repairs to the dwelling. In addition, the offer of a contractor, subcontractor, supplier, or design professional to remedy an alleged construction defect or to compromise and settle the claim by monetary payment does not constitute an admission of liability with respect to the defect.

(12)  A claimant's written notice of claim under subsection (1) tolls the applicable statute of limitations until the later of:

(a)  Sixty days after the contractor, subcontractor, supplier, or design professional receives the notice; or

(b)  Thirty days after the end of the repair period stated in the offer, if the claimant has accepted the offer. By stipulation of the parties, the period may be extended and the statute of limitations is tolled during the extension.

(13)  The procedures in this section apply to each alleged construction defect. However, a claimant may include multiple defects in one notice of claim.

(14)  Sections 558.001-558.003 of this act do not:

(a)  Bar or limit any rights, including the right of specific performance to the extent such right would be available in the absence of this act, any causes of action, or any theories on which liability may be based, except as specifically provided in this act;

(b)  Bar or limit any defense, or create any new defense, except as specifically provided in this act; or

(c)  Create any new rights, causes of action, or theories on which liability may be based.

(15)  To the extent that an arbitration clause in a contract for the sale, design, construction, or remodeling of a dwelling conflicts with this section, this section shall control.

History.--s. 4, ch. 2003-49.

¹Note.--Section 7, ch. 2003-49, provides that "[t]his act shall take effect [May 27, 2003] and shall apply to all actions accruing on or after the effective date."