Senate Bill sb1286er

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    2003 Legislature    CS for CS for SB 1286, 2nd Engrossed (ntc)



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  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 bring 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 severability; providing an

15         effective date.

16  

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

18  

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

20  Legislature finds that an effective alternative dispute

21  resolution mechanism in certain construction defect matters

22  should involve the claimant filing a notice of claim with the

23  contractor, subcontractor, supplier, or design professional

24  that the claimant asserts is responsible for the defect, and

25  should provide the contractor, subcontractor, supplier, or

26  design professional with an opportunity to resolve the claim

27  without resort to further legal process.

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

29  term:

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

31  proceeding for damages or indemnity asserting a claim for


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    2003 Legislature    CS for CS for SB 1286, 2nd Engrossed (ntc)



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

 2  an alleged construction defect, but does not include any civil

 3  action or arbitration proceeding asserting a claim for alleged

 4  personal injuries arising out of an alleged construction

 5  defect.

 6         (2)  "Association" has the same meaning as in section

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

 8  723.025, Florida Statutes.

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

10  subsequent purchaser, tenant, or association, who asserts a

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

12  professional concerning a construction defect. The term does

13  not include a contractor, subcontractor, supplier, or design

14  professional.

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

16  deficiency arising out of, the design, specifications,

17  surveying, planning, supervision, observation of construction,

18  or construction or remodeling of a dwelling resulting from:

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

20  in the construction or remodeling;

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

22  the time of construction or remodeling;

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

24  applicable professional standards of care at the time of

25  governmental approval; or

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

27  accordance with accepted trade standards for good and

28  workmanlike construction at the time of construction.

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

30  corporation, association, or other organization that is

31  legally engaged in the business of designing, developing,


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    2003 Legislature    CS for CS for SB 1286, 2nd Engrossed (ntc)



 1  constructing, manufacturing, selling, or remodeling dwellings

 2  or attachments thereto.

 3         (6)  "Design professionals" means a person licensed in

 4  this state as an architect, interior designer, landscape

 5  architect, engineer, or surveyor.

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

 7  manufactured or modular home, duplex, or unit in a multifamily

 8  residential building designed for residential use and includes

 9  common areas and improvements that are owned or maintained by

10  an association or by members of an association, and includes

11  the systems, other components, and improvements that are part

12  of the structure at the time of completion of construction.

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

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

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

16  work on behalf of another contractor in the construction or

17  remodeling of a dwelling.

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

19  equipment, or other supplies for the construction or

20  remodeling of a dwelling.

21         Section 3.  Action; abatement.--If a claimant files an

22  action without first complying with the requirements of this

23  act, on motion by a party to the action the court shall abate

24  the action, without prejudice, and the action may not proceed

25  until the claimant has complied with such requirements.

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

27         (1)  In actions brought against a contractor,

28  subcontractor, supplier, or design professional related to an

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

30  60 days before filing an action, serve written notice of claim

31  on the contractor, subcontractor, supplier, or design


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    2003 Legislature    CS for CS for SB 1286, 2nd Engrossed (ntc)



 1  professional, as applicable. The notice of claim must describe

 2  the claim in reasonable detail sufficient to determine the

 3  general nature of each alleged defect and a description of the

 4  damage or loss resulting from the defect, if known. The

 5  claimant shall endeavor to serve the notice of claim within 15

 6  days after discovery of an alleged defect, but the failure to

 7  serve notice of claim within 15 days does not bar the filing

 8  of an action, subject to section 3.

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

10  of claim, the contractor, subcontractor, supplier, or design

11  professional may inspect the dwelling to assess each alleged

12  construction defect. The claimant shall provide the

13  contractor, subcontractor, supplier, or design professional

14  and its contractors or agents reasonable access to the

15  dwelling during normal working hours to inspect the dwelling

16  to determine the nature and cause of each alleged construction

17  defect and the nature and extent of any repairs or

18  replacements necessary to remedy each defect. The inspection

19  may include destructive testing by mutual agreement. Prior to

20  performing any destructive testing, the person who desires to

21  perform the testing shall notify the claimant in writing of

22  the type of testing to be performed, the anticipated damage to

23  the dwelling which will be caused by the testing, and the

24  anticipated repairs that will be necessary to repair any

25  damage caused by the testing. The person performing the

26  testing is responsible for repairing any damage to the

27  dwelling caused by the testing.

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

29  claim, the contractor, subcontractor, supplier, and design

30  professional must forward a copy of the notice of claim to

31  each subcontractor, supplier, or design professional who it


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    2003 Legislature    CS for CS for SB 1286, 2nd Engrossed (ntc)



 1  reasonably believes is responsible for each defect specified

 2  in the notice of claim and shall note the specific defect for

 3  which it believes the particular subcontractor, supplier, or

 4  design professional is responsible. Each such subcontractor,

 5  supplier, and design professional may inspect the dwelling as

 6  provided in subsection (2) within 5 business days after

 7  receiving a copy of the notice.

 8         (4)  Within 5 business day after receiving a copy of

 9  the notice of claim, the subcontractor, supplier, or design

10  professional must serve a written response to the contractor,

11  subcontractor, supplier, or design professional who served a

12  copy of the notice of claim. The written response shall

13  include a report of the scope of any inspection of the

14  dwelling the findings and results of the inspection, a

15  statement of whether the subcontractor, supplier, or design

16  professional is willing to make repairs to the dwelling or

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

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

19  construction defect, and a timetable for the completion of

20  such repairs.

21         (5)  Within 25 days after receiving the notice of

22  claim, each contractor, subcontractor, supplier, or design

23  professional must serve a written response to the claimant.

24  The written response must provide:

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

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

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

28  inspection, a detailed description of the repairs necessary to

29  remedy the defect, and a timetable for the completion of such

30  repairs;

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

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

 3  claimant's acceptance of the offer; or

 4         (c)  A written statement that the contractor,

 5  subcontractor, supplier, or design professional disputes the

 6  claim and will not remedy the defect or compromise and settle

 7  the claim.

 8         (6)  If the contractor, subcontractor, supplier, or

 9  design professional offers to remedy the alleged construction

10  defect or compromise and settle the claim by monetary payment,

11  the written response must contain a statement that the

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

13  15 days, or 45 days for an association, after service to the

14  written response, the claimant does not serve a written

15  rejection of the offer on the contractor, subcontractor,

16  supplier, or design professional.

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

18  design professional disputes the claim and will neither remedy

19  the defect nor compromise and settle the claim, or does not

20  respond to the claimant's notice of claim within the time

21  provided in subsection (5), the claimant may, without further

22  notice, proceed with an action against the contractor,

23  subcontractor, supplier or design professional for the claim

24  described in the notice of claim.

25         (8)  A claimant who rejects a settlement offer made by

26  the contractor, subcontractor, supplier, or design

27  professional must serve written notice of such rejection on

28  the contractor, subcontractor, supplier, or design

29  professional within 15 days, or 45 days for an association,

30  after service of the settlement offer. The claimant's

31  rejection must contain the settlement offer with the word


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 1  "rejected" printed on it. After service of the rejection, the

 2  claimant may proceed with an action against the contractor,

 3  subcontractor, supplier, or design professional for the claims

 4  in the notice of claim without further notice.

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

 6  subcontractor, supplier, or design professional and the

 7  contractor, subcontractor, supplier, or design professional

 8  does not make the payment or repair the defect within the

 9  agreed time and in the agreed manner, the claimant may,

10  without further notice, proceed with an action against the

11  contractor, subcontractor, supplier, or design professional

12  for the claim in the notice of claim. If a claimant accepts a

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

14  offer and the contractor, subcontractor, supplier, or design

15  professional makes payment or repairs the defect within the

16  agreed time and in the agreed manner, the claimant is barred

17  from proceeding with an action against the contractor,

18  subcontractor, supplier, or design professional for the claim

19  described in the notice of claim.

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

21  contractor, subcontractor, supplier, or design professional to

22  repair an alleged construction defect, the claimant shall

23  provide the contractor, subcontractor, supplier, or design

24  professional and its contractors or other agents reasonable

25  access to the claimant's dwelling during normal working hours

26  to perform the repair by the agreed-upon timetable as stated

27  in the offer.

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

29  subcontractor, supplier, or design professional to follow the

30  procedures in this section is admissible in an action.

31  However, this section does not prohibit or limit the claimant


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 1  from making any necessary emergency repairs to the dwelling.

 2  In addition, the offer of a contractor, subcontractor,

 3  supplier, or design professional to remedy an alleged

 4  construction defect or to compromise and settle the claim by

 5  monetary payment does not constitute an admission of liability

 6  with respect to the defect.

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

 8  subsection (1) tolls the applicable statute of limitations

 9  until the later of:

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

11  supplier, or design professional receives the notice; or

12         (b)  Thirty days after the end of the repair period

13  stated in the offer, if the claimant has accepted the offer.

14  By stipulation of the parties, the period may be extended and

15  the statute of limitations is tolled during the extension.

16         (13)  The procedures in this section apply to each

17  alleged construction defect. However, a claimant may include

18  multiple defects in one notice of claim.

19         (14)  Sections 1 through 3 of this act do not:

20         (a)  Bar or limit any rights, including the right of

21  specific performance to the extent such right would be

22  available in the absence of this act, any causes of action, or

23  any theories on which liability may be based, except as

24  specifically provided in this act;

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

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

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

28  theories on which liability may be based.

29         (15)  To the extent that an arbitration clause in a

30  contract for the sale, design, construction, or remodeling of

31  


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 1  a dwelling conflicts with this section, this section shall

 2  control.

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

 4         (1)  Upon entering into a contract for the sale,

 5  design, construction, or remodeling of a dwelling, the

 6  contractor, subcontractor, supplier, or design professional

 7  shall provide notice to the owner of the dwelling of the

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

 9  right to offer to cure construction defects or pay to settle

10  alleged construction defects before a claimant may commence an

11  action against the contractor, subcontractor, supplier, or

12  design professional. Such notice must be conspicuous and may

13  be included as part of the contract.

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

15  substantially the following form:

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17  FLORIDA LAW CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW

18  BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION

19  AGAINST A CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN

20  PROFESSIONAL FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR HOME.

21  SIXTY DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO

22  THE CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN

23  PROFESSIONAL A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS

24  YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR AND ANY

25  SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS THE

26  OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND

27  MAKE AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION

28  DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE

29  CONTRACTOR OR ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN

30  PROFESSIONALS. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER

31  FLORIDA LAW.


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    2003 Legislature    CS for CS for SB 1286, 2nd Engrossed (ntc)



 1         Section 6.  If any provision of this act or the

 2  application thereof to any person or circumstance is held

 3  invalid, the invalidity does not affect other provisions or

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

 5  invalid provision or application, and to this end the

 6  provisions of this act are declared severable.

 7         Section 7.  This act shall take effect upon becoming a

 8  law and shall apply to all actions accruing on or after the

 9  effective date.

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