HB 1755 2003
1	A bill to be entitled
2	An act relating to construction defects; providing
3	legislative findings and declarations; providing
4	definitions; providing for the dismissal of dwelling
5	actions without prejudice under certain circumstances;
6	requiring a notice of claim and an opportunity to repair
7	certain construction defects under certain circumstances;
8	providing procedures and requirements for claim resolution
9	by homeowners and construction professionals; providing
10	for notice and response; providing for offers to
11	compromise and settle, inspections, or disputation of
12	claims; providing for bringing actions against certain
13	persons under certain circumstances; providing for access
14	to a dwelling to inspect for certain purposes; providing
15	for offers to remedy construction defects at no cost or
16	offers to compromise and settle certain claims; providing
17	for refusal to remedy defects; providing for bringing
18	actions against certain persons under certain
19	circumstances; limiting a claimant’s recovery to certain
20	amounts under certain circumstances; providing for access
21	to a dwelling to remedy certain defects; specifying
22	admissibility of certain actions by a claimant as
23	mitigation of certain damages; precluding contractors from
24	making certain assertions of claimant noncompliance under
25	certain circumstances; providing for tolling a time
26	limitation; providing procedures for notice and
27	opportunity to repair for discovery of additional
28	construction defects; requiring the construction
29	professional to provide to dwelling owners at time of sale
30	certain notice of rights to offer to cure construction
31	defects; specifying notice form and contents; requiring
32	new residential dwelling contractors to provide initial
33	purchasers with certain contractor and subcontractor
34	information; providing requirements, restrictions, and
35	limitations before condominium, cooperative, or
36	homeowners’ associations may bring lawsuits relating to
37	construction defects; providing a criminal penalty;
38	requiring use of a contractor to perform destructive
39	testing; requiring a vote by unit owners before an
40	association may undertake certain actions for construction
41	defects; requiring notice; providing an effective date.
42
43	Be It Enacted by the Legislature of the State of Florida:
44
45	Section 1. Legislative findings and declaration.--The
46	Legislature finds, declares, and determines that this state
47	needs an alternative method to resolve legitimate construction
48	disputes that would reduce the need for litigation while
49	adequately protecting the rights of homeowners. The Legislature
50	declares that an effective alternative dispute resolution
51	mechanism in certain construction defect matters should involve
52	the claimant filing a notice of claim with the construction
53	professional that the claimant asserts is responsible for the
54	defect and providing the construction professional with an
55	opportunity to resolve the claim without litigation.
56	Section 2. Definitions.--
57	(1) “Action” means any civil lawsuit or action or
58	arbitration proceeding for damages or indemnity asserting a
59	claim for injury or loss to a dwelling or personal property
60	caused by an alleged defect arising out of or related to the
61	design, construction, condition, or sale of the dwelling or a
62	remodel of a dwelling.
63	(2) “Association” has the same meaning as set forth in s.
64	718.103(2), s. 719.103(2), or s. 720.301(7), Florida Statutes.
65	(3) “Claimant” means a homeowner, including a subsequent
66	purchaser, or association which asserts a claim against a
67	construction professional concerning a defect in the design,
68	construction, condition, or sale of a dwelling or in the
69	remodeling of a dwelling.
70	(4) “Construction defect” means a deficiency in, or a
71	deficiency arising out of, the design, specifications,
72	surveying, planning, supervision, observation of construction,
73	or construction of residential improvements resulting from:
74	(a) Defective materials, products, or components used in
75	the construction of residential improvements;
76	(b) A violation of the applicable codes in effect at the
77	time of construction of residential improvements;
78	(c) A failure of the design of residential improvements to
79	meet the applicable professional standards of care at the time
80	of governmental approval; or
81	(d) A failure to construct residential improvements in
82	accordance with accepted trade standards for good and
83	workmanlike construction at the time of construction. Compliance
84	with the applicable codes in effect at the time of construction
85	shall conclusively establish construction in accordance with
86	accepted trade standards for good and workmanlike construction,
87	with respect to all matters specified in those codes.
88	(5) “Contractor” means any person, firm, partnership,
89	corporation, association, or other organization that is engaged
90	in the business of designing, developing, constructing, or
91	selling dwellings.
92	(6) “Design professional” means a person licensed in the
93	state as an architect, interior designer, landscape architect,
94	engineer, or surveyor.
95	(7) “Dwelling” means a single-family house, duplex, or
96	multifamily unit designed for residential use in which title to
97	each individual unit is transferred to the owner under a
98	condominium or cooperative system and shall include common areas
99	and improvements that are owned or maintained by an association
100	or by members of an association. A dwelling includes the
101	systems, other components, and improvements that are part of a
102	single-family or multifamily unit at the time of construction.
103	(8) “Service” means personal service or delivery by
104	certified mail to the last known address of the addressee.
105	(9) “Subcontractor” means a contractor who performs work
106	on behalf of another contractor in the construction of a
107	dwelling.
108	(10) “Supplier” means a person who provides materials,
109	equipment, or other supplies for the construction of a dwelling.
110	Section 3. Dwelling action; dismissal without
111	prejudice.--If a claimant files a dwelling action without first
112	complying with the provisions of this act, on motion by a party
113	to the action, the court shall dismiss the action without
114	prejudice and the action may not be refiled until the claimant
115	has complied with the requirements of this act.
116	Section 4. Notice and opportunity to repair.--
117	(1) In every action brought against a contractor arising
118	out of the construction of a dwelling, the claimant shall, no
119	later than 90 days before filing an action, serve a written
120	notice of claim on the contractor. The notice of claim shall
121	state that the claimant asserts a construction defect claim and
122	the notice of claim shall describe the claim or claims in
123	reasonable detail sufficient to determine the general nature of
124	any alleged construction defects and a description of the
125	results of the defects, if known.
126	(2) Within 15 days after the initial service of the notice
127	of claim required in subsection (1), the contractor shall
128	forward a copy of the notice to each subcontractor, supplier,
129	and design professional who the contractor reasonably believes
130	is responsible for a defect specified in the notice and include
131	with the notice the specific defect for which the contractor
132	believes the subcontractor, supplier, or design professional is
133	responsible.
134	(3) On the request of the contractor, subcontractor,
135	supplier, or design professional who has received a notice
136	pursuant to subsection (1) or subsection (2), the claimant shall
137	provide to the contractor, subcontractor, supplier, or design
138	professional any evidence that depicts the nature and cause of
139	the defect and the nature and extent of repairs necessary to
140	remedy the defect, including, but not limited to, expert
141	reports, photographs, and videotapes, if that evidence would be
142	discoverable under the Florida Rules of Civil Procedure.
143	(4) Within 30 days after service of the notice of claim by
144	claimant required in subsection (1) or subsection (2), each
145	contractor, subcontractor, supplier, or design professional that
146	has received a notice of claim shall serve a written response on
147	the claimant by registered mail or personal service. The written
148	response shall:
149	(a) Offer to compromise and settle the claim by monetary
150	payment without inspection;
151	(b) Propose to inspect the dwelling that is the subject of
152	the claim; or
153	(c) State that the contractor, subcontractor, supplier, or
154	design professional disputes the claim and does not intend to
155	remedy the alleged construction defect or compromise and settle
156	the claim.
157	(5) If the contractor, subcontractor, supplier, or design
158	professional disputes the claim pursuant to paragraph (4)(c) and
159	does not intend to remedy the alleged construction defect or
160	compromise and settle the claim, or does not respond to the
161	claimant’s notice of claim within the time stated in subsection
162	(4), the claimant may bring an action against the contractor,
163	subcontractor, supplier, or design professional for the claim
164	described in the notice of claim without further notice.
165	(6) If the claimant rejects the inspection proposal or the
166	settlement offer made by the contractor, subcontractor,
167	supplier, or design professional pursuant to subsection (4), the
168	claimant shall serve written notice of the claimant’s rejection
169	on the contractor, subcontractor, supplier, or design
170	professional. The notice shall include the basis for the
171	claimant’s rejection of the contractor, subcontractor, supplier,
172	or design professional’s proposal or offer.
173	(7) After service of the rejection required by subsection
174	(6), the claimant may bring an action against the contractor,
175	subcontractor, supplier, or design professional for the claim
176	described in the initial notice of claim required by subsection
177	(1) or subsection (2) without further notice.
178	(8) If the claimant elects to allow the contractor,
179	subcontractor, supplier, or design professional to inspect the
180	dwelling in accordance with the contractor’s, subcontractor’s,
181	supplier’s, or design professional’s proposal pursuant to
182	paragraph (4)(b), the claimant shall provide the contractor,
183	subcontractor, supplier, or design professional and its
184	contractors or other agents reasonable access to the claimant’s
185	residence during normal working hours to inspect the premises
186	and the claimed defect to determine the nature and cause of the
187	alleged defects and the nature and extent of any repairs or
188	replacements necessary to remedy the alleged defects.
189	(9) Within 14 days after completion of the inspection, the
190	contractor, subcontractor, supplier, or design professional
191	shall serve on the claimant:
192	(a) A written offer to remedy the construction defect at
193	no cost to the claimant, including a report of the scope of the
194	inspection, the findings and results of the inspection, a
195	description of the additional construction necessary to remedy
196	the defect described in the claim, and a timetable for the
197	completion of such construction;
198	(b) A written offer to compromise and settle the claim by
199	monetary payment; or
200	(c) A written statement that the contractor,
201	subcontractor, supplier, or design professional does not intend
202	to proceed further to remedy the defect.
203	(10) If a claimant accepts a contractor's,
204	subcontractor's, supplier's, or design professional’s offer made
205	pursuant to paragraph (9)(a) or paragraph (9)(b) and the
206	contractor, subcontractor, supplier, or design professional does
207	not proceed to make the monetary payment or remedy the
208	construction defect within the agreed timetable, the claimant
209	may bring an action against the contractor, subcontractor,
210	supplier, or design professional for the claim described in the
211	initial notice of claim required by subsection (1) or subsection
212	(2) without further notice.
213	(11) If a claimant receives a written statement that the
214	contractor, subcontractor, supplier, or design professional does
215	not intend to proceed further to remedy the defect, the claimant
216	may bring an action against the contractor, subcontractor,
217	supplier, or design professional for the claim described in the
218	initial notice of claim required by subsection (1) or subsection
219	(2) without further notice.
220	(12) If the claimant rejects the offer made by the
221	contractor, subcontractor, supplier, or design professional to
222	remedy the construction defect or compromise and settle the
223	claim by monetary payment, the claimant shall serve written
224	notice of the claimant’s rejection on the contractor,
225	subcontractor, supplier, or design professional no later than 30
226	days after receipt of the offer. The notice shall include the
227	basis for the claimant’s rejection of the contractor's,
228	subcontractor's, supplier's, or design professional’s offer.
229	After service of the rejection, the claimant may bring an action
230	against the contractor, subcontractor, supplier, or design
231	professional for the claim described in the notice of claim
232	without further notice.
233	(13) If a claimant unreasonably rejects an offer made as
234	provided by this section or does not permit the contractor,
235	subcontractor, supplier, or design professional a reasonable
236	opportunity to repair the defect pursuant to an accepted offer
237	of settlement, the claimant may not recover an amount in excess
238	of:
239	(a) The reasonable cost of the offered repairs which are
240	necessary to cure the construction defect and which are the
241	responsibility of the contractor, subcontractor, supplier, or
242	design professional; or
243	(b) The amount of the monetary settlement offered by the
244	contractor, subcontractor, supplier, or design professional.
245	(14) Any claimant accepting the offer of the contractor,
246	subcontractor, supplier, or design professional to remedy the
247	construction defects shall do so by serving the contractor,
248	subcontractor, supplier, or design professional with a written
249	notice of acceptance no later than 30 days after receipt of the
250	offer.
251	(15) If a claimant accepts a contractor's,
252	subcontractor's, supplier's, or design professional’s offer to
253	repair a defect described in an initial notice of claim, the
254	claimant shall provide the contractor, subcontractor, supplier,
255	or design professional and its contractors or other agents
256	reasonable access to the claimant’s residence during normal
257	working hours to perform and complete the construction by the
258	timetable stated in the offer.
259	(16) A claimant’s failure to do any of the following is
260	admissible in any dwelling action and creates a rebuttable
261	presumption that the claimant’s damages could have been
262	mitigated:
263	(a) Allow a reasonable inspection requested by the
264	contractor, subcontractor, supplier, or design professional; or
265	(b) Provide a good faith written response to a
266	contractor's, subcontractor's, supplier's, or design
267	professional’s offer.
268	(17) Absent good cause, the contractor's, subcontractor's,
269	supplier's, or design professional’s failure to respond in good
270	faith to the claimant’s notice shall preclude the contractor,
271	subcontractor, supplier, or design professional from asserting
272	that the claimant did not comply with the provisions of this
273	act.
274	(18) A claimant’s written notice tolls the applicable
275	statute of limitations until 90 days after the contractor,
276	subcontractor, supplier, or design professional receives the
277	notice. By stipulation of the parties, the 90-day period may be
278	extended and the statute of limitations is tolled during the
279	extension.
280	Section 5. Additional construction defects; additional
281	notice and opportunity to repair required.--A construction
282	defect which is discovered after a claimant has provided a
283	contractor with the claim notice required in section 4 may not
284	be alleged until the claimant has given the contractor,
285	subcontractor, supplier, or design professional who performed
286	the original construction:
287	(1) Written notice of the alleged defect required by
288	section 4.
289	(2) A reasonable opportunity to repair the alleged
290	construction defect in the manner provided in section 4.
291	Section 6. Contract of sale; provisions.--
292	(1) Upon entering into a contract for sale, construction,
293	or substantial remodeling of a dwelling, the contractor,
294	subcontractor, supplier, or design professional shall provide
295	notice to the owner of the dwelling of the contractor’s,
296	subcontractor’s, supplier’s, or design professional's right to
297	offer to cure construction defects before a claimant may
298	commence litigation against the contractor, subcontractor,
299	supplier, or design professional. Such notice shall be
300	conspicuous and may be included as part of the underlying
301	contract.
302	(2) The notice required by subsection (1) shall be in
303	substantially the following form:
304
305	CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU
306	MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST THE
307	CONTRACTOR WHO CONSTRUCTED YOUR HOME. NINETY DAYS BEFORE
308	YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO THE CONTRACTOR
309	A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE
310	ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR AND ANY
311	SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS THE
312	OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE
313	DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY
314	THE CONTRACTOR OR ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN
315	PROFESSIONALS. THERE ARE STRICT DEADLINES AND PROCEDURES
316	UNDER STATE LAW, AND FAILURE TO FOLLOW THEM MAY AFFECT
317	YOUR ABILITY TO FILE A LAWSUIT.
318
319	Section 7. Contractor notification requirements.--Each
320	contractor who constructs a new residential dwelling shall,
321	within 30 days after the close of the sale, provide in writing
322	to the initial purchaser of the residence:
323	(1) The name, license number, business address, and
324	telephone number of each subcontractor or design professional
325	who performed any work related to the design or construction of
326	the dwelling.
327	(2) A brief description of the work performed by each
328	subcontractor identified pursuant to this section.
329	Section 8. Actions of associations.--
330	(1) A person shall not provide or offer to provide
331	anything of value to a property manager of a condominium
332	association as defined in s. 718.103, Florida Statutes, a
333	cooperative association as defined in s. 719.103, Florida
334	Statutes, a homeowners’ association as defined in s. 720.301,
335	Florida Statutes, or to a member or officer of the board of
336	directors of such association to induce the property manager,
337	member, or officer to either encourage or discourage the filing
338	of a claim by the association for damages arising from a
339	construction defect.
340	(2) A property manager of such condominium association,
341	cooperative association, or homeowners’ association shall not
342	accept anything of value given to him or her in exchange for
343	encouraging or discouraging the filing of a claim by the
344	association that he or she manages for damages arising from a
345	construction defect.
346	(3) A member or officer of the board of directors of such
347	condominium association, cooperative association, or homeowners’
348	association shall not accept anything of value given to him or
349	her in exchange for encouraging or discouraging the filing of a
350	claim by the association of which he or she is a member or
351	officer for damages arising from a construction defect.
352	(4) A person who willfully violates subsection (1),
353	subsection (2), or subsection (3) commits a misdemeanor of the
354	second degree, punishable as provided for in s. 775.082 or s.
355	775.083, Florida Statutes.
356	(5) An association or an attorney for an association shall
357	not employ a person to perform destructive tests to determine
358	any damage or injury to a unit, common element, or limited
359	common element caused by a constructional defect unless:
360	(a) The person is licensed as a contractor.
361	(b) The association has obtained the prior written
362	approval of each unit’s owner whose unit or interest in the
363	common element or limited common element will be affected by
364	such testing.
365	(c) The person performing the tests has provided a written
366	schedule for repairs.
367	(d) The person performing the tests is required to repair
368	all damage resulting from such tests in accordance with state
369	laws and local ordinances relating thereto.
370	(e) The association or the person so employed obtains all
371	permits required to conduct such tests and to repair any damage
372	resulting from such tests.
373	(6) If an action is brought by an association to recover
374	damages resulting from construction defects in any of the units,
375	common elements, or limited common elements of the common-
376	interest community, the attorney representing the association
377	shall provide to the board of directors of the association and
378	to each unit’s owner a statement that includes, in reasonable
379	detail:
380	(a) The defects and damages or injuries to the units,
381	common elements, or limited common elements.
382	(b) The cause of the defects, if the cause is known.
383	(c) The nature and extent that is known of the damage or
384	injury resulting from the defects.
385	(d) The location of each defect within the units, common
386	elements, or limited common elements, if known.
387	(e) A reasonable estimate of the cost of the action,
388	including reasonable attorney fees.
389	(f) An explanation of the potential benefits of the action
390	and the potential adverse consequences if the association does
391	not commence the action or if the outcome is not favorable to
392	the association.
393	(7) An association may commence an action only upon a vote
394	or written agreement of the owners of the units to which at
395	least a majority of the votes of the members of the association
396	are allocated. In such a case, the association shall provide
397	written notice to the owner of each unit of the meeting at which
398	the commencement of an action is to be considered or action is
399	to be taken within 21 calendar days before the meeting.
400	Section 9. This act shall take effect upon becoming a law.
401