HB 1755 2003
1	CHAMBER ACTION
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6	The Committee on Business Regulation recommends the following:
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8	Committee Substitute
9	Remove the entire bill and insert:
10	A bill to be entitled
11	An act relating to construction defects; providing
12	legislative findings and declarations; providing
13	definitions; providing for abatement of certain dwelling
14	actions without prejudice under certain circumstances;
15	requiring a notice of claim and an opportunity to repair
16	certain construction defects under certain circumstances;
17	providing procedures and requirements for claim resolution
18	by homeowners and construction professionals; providing
19	for notice and response; providing for offers to
20	compromise and settle, inspections, or disputation of
21	claims; providing for access to a dwelling to inspect for
22	certain purposes; providing for testing; providing for
23	offers to remedy construction defects at no cost or offers
24	to compromise and settle certain claims; providing for
25	refusal to remedy defects; providing for bringing actions
26	against certain persons under certain circumstances;
27	providing for barring certain further actions under
28	certain circumstances; providing for access to a dwelling
29	to remedy certain defects; specifying admissibility of
30	certain failures to comply in certain court actions;
31	providing for emergency repairs under certain
32	circumstances; providing for tolling a time limitation;
33	providing construction and application; requiring certain
34	contractors, suppliers, and design professionals to
35	provide to dwelling owners at the time of a sale,
36	construction, or remodeling contract certain notice of
37	rights to offer to cure construction defects; specifying
38	notice form and contents; providing severability;
39	providing an effective date.
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41	Be It Enacted by the Legislature of the State of Florida:
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43	Section 1. Legislative findings and declarations.--The
44	Legislature finds, declares, and determines that an effective
45	alternative dispute resolution mechanism in certain construction
46	defect matters should involve the claimant filing a notice of
47	claim with the contractor, subcontractor, supplier, or design
48	professional that the claimant asserts is responsible for the
49	defect and provide the contractor, subcontractor, supplier, or
50	design professional with an opportunity to resolve the claim
51	without resort to further legal process.
52	Section 2. Definitions.--As used in this act, the term:
53	(1) "Action" means any civil action or arbitration
54	proceeding for damages or indemnity asserting a claim for damage
55	to or loss of a dwelling or personal property caused by an
56	alleged construction defect. The term “action” does not include
57	any civil action or arbitration proceeding asserting a claim for
58	alleged personal injuries arising out of an alleged construction
59	defect. However, if a civil action or arbitration proceeding
60	asserts both a claim for damage to or loss of a dwelling or
61	personal property caused by an alleged construction defect and a
62	claim for alleged personal injuries arising out of an alleged
63	construction defect, the action may not proceed with respect to
64	the claim for damage to or loss of a dwelling or personal
65	property until the claimant first complies with the requirements
66	of this act.
67	(2) "Association" has the same meaning as set forth in s.
68	718.103(2), s. 719.103(2), s. 720.301(7), or s. 723.025, Florida
69	Statutes.
70	(3) "Claimant" means a homeowner, including a subsequent
71	purchaser, tenant, or association which asserts a claim against
72	a contractor, subcontractor, supplier, or design professional
73	concerning a defect in the design, construction, condition, or
74	sale of a dwelling or in the remodel of a dwelling. The term
75	"claimant" does not include a contractor, subcontractor,
76	supplier, or design professional.
77	(4) "Construction defect" means a deficiency in, or a
78	deficiency arising out of, the design, specifications,
79	surveying, planning, supervision, observation of construction,
80	or construction or remodeling of a dwelling resulting from:
81	(a) Defective material, products, or components used in
82	the construction or remodeling of a dwelling;
83	(b) A violation of the applicable codes in effect at the
84	time of construction or remodeling of a dwelling;
85	(c) A failure of the design of a dwelling to meet the
86	applicable professional standards of care at the time of
87	governmental approval; or
88	(d) A failure to construct or remodel a dwelling in
89	accordance with accepted trade standards for good and
90	workmanlike construction at the time of construction.
91	(5) "Contractor" means any person, firm, partnership,
92	corporation, association, or other organization that is legally
93	engaged in the business of designing, developing, constructing,
94	manufacturing, selling, or remodeling of a dwelling or
95	attachments thereto.
96	(6) "Design professional" means a person licensed in the
97	state as an architect, interior designer, landscape architect,
98	engineer, or surveyor.
99	(7) "Dwelling" means a single-family house, manufactured
100	or modular home, duplex, or multifamily unit building designed
101	for residential use and includes common areas and improvements
102	that are owned or maintained by an association or by members of
103	an association. A dwelling includes the systems, other
104	components, and improvements that are part of a single-family
105	house, manufactured or modular home, duplex, or multifamily
106	residential building at the time of completion of construction.
107	(8) "Service" means personal service or delivery by
108	certified mail to the last known address of the addressee.
109	(9) "Subcontractor" means a contractor who performs work
110	on behalf of another contractor in the construction or
111	remodeling of a dwelling.
112	(10) "Supplier" means a person who provides materials,
113	equipment, or other supplies for the construction or remodeling
114	of a dwelling.
115	Section 3. Action; abatement.--If a claimant files an
116	action without first complying with the requirements of this
117	act, on motion by a party to the action, the court shall abate
118	the action, without prejudice, and the action may not proceed
119	until the claimant has complied with the requirements of this
120	act.
121	Section 4. Notice and opportunity to repair.--
122	(1) In every action brought against a contractor,
123	subcontractor, supplier, or design professional related to an
124	alleged construction defect, the claimant shall, no later than
125	60 days before filing an action, serve written notice of claim
126	on the contractor. The notice of claim must describe the claim
127	in reasonable detail sufficient to determine the general nature
128	of each alleged construction defect and a description of the
129	damage or loss resulting from each alleged construction defect,
130	if known. The claimant shall endeavor to serve the notice of
131	claim within 15 days after the claimant's discovery of the
132	alleged construction defect but the claimant's failure to serve
133	the notice of claim within that 15-day period does not bar the
134	filing of an action under section 3 if the claimant complies
135	with the other requirements of this section.
136	(2) Within 5 business days after service of the notice of
137	claim required in subsection (1), the contractor, subcontractor,
138	supplier, or design professional may inspect the dwelling to
139	assess each alleged construction defect. The claimant shall
140	provide the contractor, subcontractor, supplier, or design
141	professional and its contractors or agents reasonable access to
142	the claimant's dwelling during normal working hours to inspect
143	the dwelling to determine the nature and cause of each alleged
144	construction defect and the nature and extent of any repairs or
145	replacements necessary to remedy each alleged construction
146	defect. The inspection may include destructive testing by mutual
147	agreement. Prior to performing any destructive testing, the
148	contractor, subcontractor, supplier, or design professional who
149	desires to perform the testing shall notify the claimant in
150	writing of the type of testing to be performed, the anticipated
151	damage to the dwelling which will be caused by the testing, and
152	the anticipated repairs that will be necessary to repair any
153	damage to the dwelling caused by the testing. The contractor,
154	subcontractor, supplier, or design professional performing the
155	testing shall be responsible, at his or her sole expense, for
156	repairing any damage to the dwelling caused by the testing.
157	(3) Within 10 days after service of the notice of claim
158	required in subsection (1), the contractor, subcontractor,
159	supplier, or design professional shall forward a copy of the
160	notice of claim to each subcontractor, supplier, and design
161	professional who it reasonably believes is responsible for each
162	alleged construction defect specified in the notice of claim and
163	shall include with the notice the specific alleged construction
164	defect for which it believes the subcontractor, supplier, or
165	design professional is responsible. Each such subcontractor,
166	supplier, and design professional may inspect the dwelling as
167	provided in subsection (2) within 5 business days after service
168	of a copy of the notice of claim to such subcontractor,
169	supplier, or design professional under this subsection.
170	(4) Within 5 business days following service of a copy of
171	the notice of claim to a subcontractor, supplier, or design
172	professional pursuant to subsection (3), each subcontractor,
173	supplier, or design professional who has been served a copy of
174	the notice of claim shall serve a written response to the
175	contractor, subcontractor, supplier, or design professional who
176	served a copy of the notice of claim. The written response shall
177	include a report of the scope of the inspection of the dwelling,
178	if any, the findings and results of the inspection, a statement
179	of whether the subcontractor, supplier, or design professional
180	is willing to make repairs to the dwelling or whether he or she
181	disputes the claim, a description of any repairs he or she is
182	willing to make to remedy the alleged construction defect, and a
183	timetable for the completion of such repairs.
184	(5) Within 25 days after service of the notice of claim
185	required in subsection (1), each contractor, subcontractor,
186	supplier, or design professional that has received a notice of
187	claim from the claimant shall serve a written response on the
188	claimant. The written response must provide:
189	(a) A written offer to remedy the alleged construction
190	defect at no cost to the claimant, including a report of the
191	scope of the inspection, the findings and results of the
192	inspection, a detailed description of the repairs necessary to
193	remedy the alleged construction defect, and a timetable for the
194	completion of such repairs;
195	(b) A written offer to compromise and settle the claim by
196	monetary payment to be paid within 30 days after the claimant's
197	acceptance of the offer; or
198	(c) A written statement that the contractor,
199	subcontractor, supplier, or design professional disputes the
200	claim and will not proceed further to remedy the alleged
201	construction defect or to compromise and settle the claim.
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203	If the contractor, subcontractor, supplier, or design
204	professional's written response offers to remedy the alleged
205	construction defect pursuant to paragraph (a) or compromise and
206	settle the claim by monetary payment pursuant to paragraph (b),
207	the written response shall contain a statement that the claimant
208	shall be deemed to have accepted the offer if, within 15 days,
209	or 60 days for an association, following service of such written
210	response, the claimant does not serve a written rejection of the
211	offer on the contractor, subcontractor, supplier, or design
212	professional.
213	(6) If the contractor, subcontractor, supplier, or design
214	professional disputes the claim pursuant to paragraph (5)(c) and
215	will not remedy the alleged construction defect or compromise
216	and settle the claim, or does not respond to the claimant's
217	notice of claim within the time stated in subsection (5), the
218	claimant may, without further notice, proceed with an action
219	against the contractor, subcontractor, supplier, or design
220	professional for the claim described in the notice of claim.
221	(7) If the claimant intends to reject a settlement offer
222	made by the contractor, subcontractor, supplier, or design
223	professional pursuant to paragraph (5)(a) or paragraph (5)(b),
224	the claimant shall serve written notice of the claimant's
225	rejection on the contractor, subcontractor, supplier, or design
226	professional within 15 days following service of the settlement
227	offer. The claimant's rejection shall contain the settlement
228	offer with the word "rejected" printed on the settlement offer.
229	After service of the rejection required by this subsection, the
230	claimant may proceed with an action against the contractor,
231	subcontractor, supplier, or design professional for the claims
232	described in the notice of claim required by subsection (1)
233	without further notice.
234	(8) If the claimant accepts the offer of a contractor,
235	subcontractor, supplier, or design professional made pursuant to
236	paragraph (5)(a) or paragraph (5)(b) and the contractor,
237	subcontractor, supplier, or design professional does not proceed
238	to make the monetary payment or repair the alleged construction
239	defect within the agreed timetable and in the agreed manner, the
240	claimant may, without further notice, proceed with an action
241	against the contractor, subcontractor, supplier, or design
242	professional for the claim described in the notice of claim
243	required by subsection (1). If a claimant accepts a contractor,
244	subcontractor, supplier, or design professional's offer made
245	pursuant to paragraph (5)(a) or paragraph (5)(b) and the
246	contractor, subcontractor, supplier, or design professional
247	proceeds to make the monetary payment or repair the alleged
248	construction defect within the agreed time and in the agreed
249	manner, the claimant shall thereafter be barred from bringing or
250	proceeding with an action against the contractor, subcontractor,
251	supplier, or design professional for the claim described in the
252	notice of claim required by subsection (1).
253	(9) If the claimant accepts the offer of a contractor,
254	subcontractor, supplier, or design professional to repair an
255	alleged construction defect pursuant to paragraph (5)(a), the
256	claimant shall provide the contractor, subcontractor, supplier,
257	or design professional and its contractors or other agents
258	reasonable access to the claimant's dwelling during normal
259	working hours to perform and complete the repair by the agreed
260	timetable.
261	(10) The failure of a claimant or a contractor,
262	subcontractor, supplier, or design professional to follow the
263	procedures set forth in this section is admissible in an action.
264	However, this section does not prohibit or limit the claimant
265	from making any necessary emergency repairs to the claimant's
266	dwelling. In addition, the offer of a contractor, subcontractor,
267	supplier, or design professional to remedy an alleged
268	construction defect or to compromise and settle the claim by
269	monetary payment pursuant to subsection (4), paragraph (5)(a),
270	or paragraph (5)(b) does not constitute an admission of
271	liability with respect to the alleged construction defect.
272	(11) A claimant's written notice of claim under subsection
273	(1) tolls the applicable statute of limitations until the later
274	of:
275	(a) Sixty days after the contractor, subcontractor,
276	supplier, or design professional receives the notice of claim;
277	or
278	(b) Thirty days after the end of the repair timetable
279	stated in the offer of a contractor, subcontractor, supplier, or
280	design professional made pursuant to paragraph (5)(a) if the
281	claimant has accepted the offer. By stipulation of the parties,
282	the foregoing period may be extended and the statute of
283	limitations is tolled during the extension.
284	(12) The procedures set forth in this section apply to
285	each alleged construction defect. However, a claimant may
286	include multiple alleged construction defects in one notice of
287	claim pursuant to subsection (1).
288	(13) Sections 1 through 4 of this act do not:
289	(a) Bar or limit any rights including, without limitation,
290	the right of specific performance to the extent such right would
291	be available to the claimant in the absence of this act, causes
292	of action, or theories on which liability may be based except as
293	specifically provided in this act;
294	(b) Bar or limit any defense, or create any new defense,
295	except as specifically provided in this act; or
296	(c) Create any new rights, causes of action, or theories
297	on which liability may be based.
298	Section 5. Contract of sale; provisions.--
299	(1) Upon entering into a contract to sell, construct, or
300	remodel a dwelling, the contractor, subcontractor, supplier, or
301	design professional shall provide notice to the owner of the
302	dwelling of the contractor, subcontractor, supplier, or design
303	professional's right to offer to cure construction defects or
304	pay to settle alleged construction defects before a claimant may
305	commence an action against the contractor, subcontractor,
306	supplier, or design professional. Such notice must be
307	conspicuous and may be included as part of the underlying
308	contract.
309	(2) The notice required by subsection (1) must be in
310	substantially the following form:
311
312	FLORIDA LAW CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW
313	BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST
314	A CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL
315	FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS
316	BEFORE YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO THE
317	CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL A
318	WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE
319	DEFECTIVE AND PROVIDE YOUR CONTRACTOR AND ANY SUBCONTRACTORS,
320	SUPPLIERS, OR DESIGN PROFESSIONALS THE OPPORTUNITY TO INSPECT
321	THE ALLEGED CONSTRUCTION DEFECTS AND MAKE AN OFFER TO REPAIR OR
322	PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED
323	TO ACCEPT ANY OFFER MADE BY THE CONTRACTOR OR ANY
324	SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS. THERE ARE
325	STRICT DEADLINES AND PROCEDURES UNDER FLORIDA LAW, AND FAILURE
326	TO FOLLOW THEM MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT.
327	Section 6. If any provision of this act or the application
328	thereof to any person or circumstance is held invalid, the
329	invalidity does not affect other provisions or applications of
330	this act which can be given effect without the invalid provision
331	or application, and to this end the provisions of this act are
332	declared severable.
333	Section 7. This act shall take effect upon becoming a law.