HB 1139

1	A bill to be entitled
2	An act relating to construction defects; amending ss.
3	558.001, 558.002, 558.004, and 558.005, F.S.; revising
4	provisions to expand application to construction defects
5	in any property; deleting language limiting application to
6	only residential property; providing an effective date.
7
8	Be It Enacted by the Legislature of the State of Florida:
9
10	Section 1.  Section 558.001, Florida Statutes, is amended
11	to read:
12	558.001  Legislative findings and declaration.--The
13	Legislature finds that it is beneficial to have an alternative
14	method to resolve construction disputes that would reduce the
15	need for litigation as well as protect the rights of property
16	owners homeowners. An effective alternative dispute resolution
17	mechanism in certain construction defect matters should involve
18	the claimant filing a notice of claim with the contractor,
19	subcontractor, supplier, or design professional that the
20	claimant asserts is responsible for the defect, and should
21	provide the contractor, subcontractor, supplier, or design
22	professional with an opportunity to resolve the claim without
23	resort to further legal process.
24	Section 2.  Section 558.002, Florida Statutes, is amended
25	to read:
26	558.002  Definitions.--As used in this chapter, the term:
27	(1)  "Action" means any civil action or arbitration
28	proceeding for damages or indemnity asserting a claim for damage
29	to or loss of real a dwelling or personal property caused by an
30	alleged construction defect, but does not include any
31	administrative action or any civil action or arbitration
32	proceeding asserting a claim for alleged personal injuries
33	arising out of an alleged construction defect.
34	(2)  "Association" has the same meaning as in s.
35	718.103(2), s. 719.103(2), s. 720.301(9), or s. 723.075.
36	(3)  "Claimant" means a property owner homeowner, including
37	a subsequent purchaser or association, who asserts a claim for
38	damages against a contractor, subcontractor, supplier, or design
39	professional concerning a construction defect or a subsequent
40	owner who asserts a claim for indemnification for such damages.
41	The term does not include a contractor, subcontractor, supplier,
42	or design professional.
43	(4)  "Construction defect" means a deficiency in, or a
44	deficiency arising out of, the design, specifications,
45	surveying, planning, supervision, observation of construction,
46	or construction, repair, alteration, or remodeling of a
47	dwelling, any appurtenance to the dwelling, or the real property
48	to which the dwelling or appurtenance is affixed resulting from:
49	(a)  Defective material, products, or components used in
50	the construction or remodeling;
51	(b)  A violation of the applicable codes in effect at the
52	time of construction or remodeling which gives rise to a cause
53	of action pursuant to s. 553.84;
54	(c)  A failure of the design of real property a dwelling to
55	meet the applicable professional standards of care at the time
56	of governmental approval; or
57	(d)  A failure to construct or remodel real property a
58	dwelling in accordance with accepted trade standards for good
59	and workmanlike construction at the time of construction.
60	(5)  "Contractor" means any person, as defined in s. 1.01,
61	that is legally engaged in the business of designing,
62	developing, constructing, manufacturing, repairing, or
63	remodeling real property dwellings or attachments thereto.
64	(6)  "Design professional" means a person, as defined in s.
65	1.01, licensed in this state as an architect, interior designer,
66	landscape architect, engineer, or surveyor.
67	(7)  "Real property Dwelling" means land that is improved
68	and the improvements on such land, including fixtures a single-
69	family house, manufactured or modular home, duplex, triplex,
70	quadruplex, or other multifamily unit in a multifamily
71	residential building designed for residential use in which title
72	to each individual unit is transferred to the owner under a
73	condominium or cooperative system and includes common areas and
74	improvements that are owned or maintained by an association or
75	by members of an association, and also includes the systems,
76	other components, improvements, and other structures or
77	facilities, including, but not limited to, recreational
78	structures or facilities, that are appurtenant to and located on
79	the real property on which the house, duplex, triplex,
80	quadruplex, or other multifamily unit is located, but are not
81	necessarily part of the structure at the time of completion of
82	construction.
83	(8)  "Service" means delivery by certified mail, return
84	receipt requested, to the last known address of the addressee.
85	(9)  "Subcontractor" means a person, as defined in s. 1.01,
86	who is a contractor who performs labor and supplies material on
87	behalf of another contractor in the construction or remodeling
88	of real property a dwelling.
89	(10)  "Supplier" means a person, as defined in s. 1.01, who
90	provides only materials, equipment, or other supplies for the
91	construction or remodeling of real property a dwelling.
92	Section 3.  Subsections (1), (2), (3), (4), (5), (8), (9),
93	and (14) of section 558.004, Florida Statutes, are amended to
94	read:
95	558.004  Notice and opportunity to repair.--
96	(1)  In actions brought alleging a construction defect, the
97	claimant shall, at least 60 days before filing any an action
98	involving a single-family home, an association representing 20
99	or fewer residential parcels, a manufactured or modular home, a
100	duplex, a triplex, or a quadruplex, or at least 120 days before
101	filing an action involving an association representing more than
102	20 parcels residential parcel owners, serve written notice of
103	claim on the contractor, subcontractor, supplier, or design
104	professional, as applicable, which notice shall refer to this
105	chapter. If the construction defect claim arises from work
106	performed under a contract, the written notice of claim must be
107	served on the person with whom the claimant contracted. The
108	notice of claim must describe the claim in reasonable detail
109	sufficient to determine the general nature of each alleged
110	construction defect and a description of the damage or loss
111	resulting from the defect, if known. The claimant shall endeavor
112	to serve the notice of claim within 15 days after discovery of
113	an alleged defect, but the failure to serve notice of claim
114	within 15 days does not bar the filing of an action, subject to
115	s. 558.003. This subsection does not preclude a claimant from
116	filing an action sooner than 60 days, or 120 days as applicable,
117	after service of written notice as expressly provided in
118	subsection (6), subsection (7), or subsection (8).
119	(2)  Within 30 days after receipt of the notice of claim
120	involving a single-family home, an association representing 20
121	or fewer residential parcels, a manufactured or modular home, a
122	duplex, a triplex, or a quadruplex, or within 50 days after
123	receipt of the notice of claim involving an association
124	representing more than 20 residential parcels, the person
125	receiving the notice of claim under subsection (1) is entitled
126	to perform a reasonable inspection of the property dwelling or
127	of each unit subject to the claim to assess each alleged
128	construction defect. An association's right to access property
129	for either maintenance or repair includes the authority to grant
130	access for the inspection. The claimant shall provide the person
131	receiving the notice under subsection (1) and such person's
132	contractors or agents reasonable access to the property dwelling
133	during normal working hours to inspect the property dwelling to
134	determine the nature and cause of each alleged construction
135	defect and the nature and extent of any repairs or replacements
136	necessary to remedy each defect. The person receiving notice
137	under subsection (1) shall reasonably coordinate the timing and
138	manner of any and all inspections with the claimant to minimize
139	the number of inspections. The inspection may include
140	destructive testing by mutual agreement under the following
141	reasonable terms and conditions:
142	(a)  If the person receiving notice under subsection (1)
143	determines that destructive testing is necessary to determine
144	the nature and cause of the alleged defects, such person shall
145	notify the claimant in writing.
146	(b)  The notice shall describe the destructive testing to
147	be performed, the person selected to do the testing, the
148	estimated anticipated damage and repairs to the property
149	dwelling resulting from the testing, the estimated amount of
150	time necessary for the testing and to complete the repairs, and
151	the financial responsibility offered for covering the costs of
152	repairs.
153	(c)  If the claimant promptly objects to the person
154	selected to perform the destructive testing, the person
155	receiving notice under subsection (1) shall provide the claimant
156	with a list of three qualified persons from which the claimant
157	may select one such person to perform the testing. The person
158	selected to perform the testing shall operate as an agent or
159	subcontractor of the person receiving notice under subsection
160	(1) and shall communicate with, submit any reports to and be
161	solely responsible to the person receiving notice.
162	(d)  The testing shall be done at a mutually agreeable
163	time.
164	(e)  The claimant or a representative of the claimant may
165	be present to observe the destructive testing.
166	(f)  The destructive testing shall not render the property
167	dwelling uninhabitable.
168
169	In the event the claimant fails or refuses to agree to
170	destructive testing, the claimant shall have no claim for
171	damages which could have been avoided or mitigated had
172	destructive testing been allowed when requested and had a
173	feasible remedy been promptly implemented.
174	(3)  Within 10 days after receipt of the notice of claim
175	involving a single-family home, an association representing 20
176	or fewer residential parcels, a manufactured or modular home, a
177	duplex, a triplex, or a quadruplex, or within 30 days after
178	receipt of the notice of claim involving an association
179	representing more than 20 residential parcels, the person
180	receiving the notice under subsection (1) may forward a copy of
181	the notice of claim to each contractor, subcontractor, supplier,
182	or design professional whom it reasonably believes is
183	responsible for each defect specified in the notice of claim and
184	shall note the specific defect for which it believes the
185	particular contractor, subcontractor, supplier, or design
186	professional is responsible. Each such contractor,
187	subcontractor, supplier, and design professional may inspect the
188	property dwelling as provided in subsection (2).
189	(4)  Within 15 days after receiving a copy of the notice of
190	claim pursuant to subsection (3) involving a single-family home,
191	an association representing 20 or fewer residential parcels, a
192	manufactured or modular home, a duplex, a triplex, or a
193	quadruplex, or within 30 days after receipt of the copy of the
194	notice of claim involving an association representing more than
195	20 residential parcels, the contractor, subcontractor, supplier,
196	or design professional must serve a written response to the
197	person who forwarded a copy of the notice of claim. The written
198	response shall include a report, if any, of the scope of any
199	inspection of the property dwelling, the findings and results of
200	the inspection, a statement of whether the contractor,
201	subcontractor, supplier, or design professional is willing to
202	make repairs to the property dwelling or whether such claim is
203	disputed, a description of any repairs they are willing to make
204	to remedy the alleged construction defect, and a timetable for
205	the completion of such repairs.
206	(5)  Within 45 days after receiving the notice of claim
207	involving a single-family home, an association representing 20
208	or fewer residential parcels, a manufactured or modular home, a
209	duplex, a triplex, or a quadruplex, or within 75 days after
210	receipt of a copy of the notice of claim involving an
211	association representing more than 20 residential parcels, the
212	person who received notice under subsection (1) must serve a
213	written response to the claimant. The response shall be served
214	to the attention of the person who signed the notice of claim,
215	unless otherwise designated in the notice of claim. The written
216	response must provide:
217	(a)  A written offer to remedy the alleged construction
218	defect at no cost to the claimant, a detailed description of the
219	proposed repairs necessary to remedy the defect, and a timetable
220	for the completion of such repairs;
221	(b)  A written offer to compromise and settle the claim by
222	monetary payment, that will not obligate the person's insurer,
223	and a timetable for making payment;
224	(c)  A written offer to compromise and settle the claim by
225	a combination of repairs and monetary payment, that will not
226	obligate the person's insurer, that includes a detailed
227	description of the proposed repairs and a timetable for the
228	completion of such repairs and making payment;
229	(d)  A written statement that the person disputes the claim
230	and will not remedy the defect or compromise and settle the
231	claim; or
232	(e)  A written statement that a monetary payment, including
233	insurance proceeds, if any, will be determined by the person's
234	insurer within 30 days after notification to the insurer by
235	means of forwarding the claim, which notification shall occur at
236	the same time the claimant is notified of this settlement
237	option, which the claimant can accept or reject. A written
238	statement under this paragraph may also include an offer under
239	paragraph (c), but such offer shall be contingent upon the
240	claimant also accepting the determination of the insurer whether
241	to make any monetary payment in addition thereto. If the insurer
242	for the person receiving the claim makes no response within the
243	30 days following notification, then the claimant shall be
244	deemed to have met all conditions precedent to commencing an
245	action.
246	(8)  If the claimant timely and properly accepts the offer
247	to repair an alleged construction defect, the claimant shall
248	provide the offeror and the offeror's agents reasonable access
249	to the claimant's property dwelling during normal working hours
250	to perform the repair by the agreed-upon timetable as stated in
251	the offer. If the offeror does not make the payment or repair
252	the defect within the agreed time and in the agreed manner,
253	except for reasonable delays beyond the control of the offeror,
254	including, but not limited to, weather conditions, delivery of
255	materials, claimant's actions, or issuance of any required
256	permits, the claimant may, without further notice, proceed with
257	an action against the offeror based upon the claim in the notice
258	of claim. If the offeror makes payment or repairs the defect
259	within the agreed time and in the agreed manner, the claimant is
260	barred from proceeding with an action for the claim described in
261	the notice of claim or as otherwise provided in the accepted
262	settlement offer.
263	(9)  This section does not prohibit or limit the claimant
264	from making any necessary emergency repairs to the property
265	dwelling as are required to protect the health, safety, and
266	welfare of the claimant. In addition, any offer or failure to
267	offer pursuant to subsection (5) to remedy an alleged
268	construction defect or to compromise and settle the claim by
269	monetary payment does not constitute an admission of liability
270	with respect to the defect and is not admissible in an action
271	brought under this chapter.
272	(14)  To the extent that an arbitration clause in a
273	contract for the sale, design, construction, or remodeling of
274	real property a dwelling conflicts with this section, this
275	section shall control.
276	Section 4.  Section 558.005, Florida Statutes, is amended
277	to read:
278	558.005  Contract provisions; application.--
279	(1)  Except as otherwise provided in subsections (3) and
280	(4), the provisions of this chapter shall control every contract
281	for the design, construction, or remodeling of real property a
282	dwelling entered into on or after July 1, 2004, which contains
283	the notice as set forth in subsection (2) and is conspicuously
284	set forth in capitalized letters.
285	(2)  The notice required by subsection (1) must be in
286	substantially the following form:
287
288	CHAPTER 558 NOTICE OF CLAIM
289
290	CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS
291	YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN
292	ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS BEFORE YOU
293	BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO
294	THIS CONTRACT A WRITTEN NOTICE REFERRING TO CHAPTER 558 OF ANY
295	CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE
296	SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION
297	DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE
298	ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT
299	ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND
300	PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED
301	TO PROTECT YOUR INTERESTS.
302	(3)  After receipt of the initial notice of claim, a
303	claimant and the person receiving notice under s. 558.004(1)
304	may, by written mutual agreement, alter the procedure for the
305	notice of claim process described in this chapter.
306	(4)  This chapter applies to all actions accruing on or
307	after July 1, 2004, and all actions commenced on or after such
308	date, regardless of the date of sale, issuance of a certificate
309	of occupancy or its equivalent, or substantial completion of the
310	construction dwelling. Notwithstanding the notice requirements
311	of this section for contracts entered into on or after October
312	July 1, 2006 2004, this chapter applies to all actions accruing
313	before July 1, 2004, but not yet commenced as of July 1, 2004,
314	and failure to include the notice requirements of this section
315	in a contract entered into prior to July 1, 2004, does not
316	operate to bar the procedures of this chapter from applying to
317	all such actions.
318	Section 5.  This act shall take effect October 1, 2006.

CODING: Words stricken are deletions; words underlined are additions.