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