HB 1139

1	A bill to be entitled
2	An act relating to construction defects; amending ss.
3	558.001, 558.002, and 558.004, F.S.; revising provisions
4	to expand application to construction defects in any
5	property other than public transportation projects;
6	deleting language limiting application to only residential
7	property; amending s. 558.005, F.S.; revising provisions
8	relating to required notices for construction defect
9	claims under certain construction contracts; applying
10	provisions of ch. 558, F.S., notwithstanding certain
11	notice requirements; providing an effective date.
12
13	Be It Enacted by the Legislature of the State of Florida:
14
15	Section 1.  Section 558.001, Florida Statutes, is amended
16	to read:
17	558.001  Legislative findings and declaration.--The
18	Legislature finds that it is beneficial to have an alternative
19	method to resolve construction disputes that would reduce the
20	need for litigation as well as protect the rights of property
21	owners homeowners. An effective alternative dispute resolution
22	mechanism in certain construction defect matters should involve
23	the claimant filing a notice of claim with the contractor,
24	subcontractor, supplier, or design professional that the
25	claimant asserts is responsible for the defect, and should
26	provide the contractor, subcontractor, supplier, or design
27	professional with an opportunity to resolve the claim without
28	resort to further legal process.
29	Section 2.  Section 558.002, Florida Statutes, is amended
30	to read:
31	558.002  Definitions.--As used in this chapter, the term:
32	(1)  "Action" means any civil action or arbitration
33	proceeding for damages or indemnity asserting a claim for damage
34	to or loss of real a dwelling or personal property caused by an
35	alleged construction defect, but does not include any
36	administrative action or any civil action or arbitration
37	proceeding asserting a claim for alleged personal injuries
38	arising out of an alleged construction defect.
39	(2)  "Association" has the same meaning as in s.
40	718.103(2), s. 719.103(2), s. 720.301(9), or s. 723.075.
41	(3)  "Claimant" means a property owner homeowner, including
42	a subsequent purchaser or association, who asserts a claim for
43	damages against a contractor, subcontractor, supplier, or design
44	professional concerning a construction defect or a subsequent
45	owner who asserts a claim for indemnification for such damages.
46	The term does not include a contractor, subcontractor, supplier,
47	or design professional.
48	(4)  "Construction defect" means a deficiency in, or a
49	deficiency arising out of, the design, specifications,
50	surveying, planning, supervision, observation of construction,
51	or construction, repair, alteration, or remodeling of a
52	dwelling, any appurtenance to the dwelling, or the real property
53	to which the dwelling or appurtenance is affixed resulting from:
54	(a)  Defective material, products, or components used in
55	the construction or remodeling;
56	(b)  A violation of the applicable codes in effect at the
57	time of construction or remodeling which gives rise to a cause
58	of action pursuant to s. 553.84;
59	(c)  A failure of the design of real property a dwelling to
60	meet the applicable professional standards of care at the time
61	of governmental approval; or
62	(d)  A failure to construct or remodel real property a
63	dwelling in accordance with accepted trade standards for good
64	and workmanlike construction at the time of construction.
65	(5)  "Contractor" means any person, as defined in s. 1.01,
66	that is legally engaged in the business of designing,
67	developing, constructing, manufacturing, repairing, or
68	remodeling real property dwellings or attachments thereto.
69	(6)  "Design professional" means a person, as defined in s.
70	1.01, licensed in this state as an architect, interior designer,
71	landscape architect, engineer, or surveyor.
72	(7)  "Real property" or "property Dwelling" means land that
73	is improved and the improvements on such land, including
74	fixtures, manufactured housing, or mobile homes and excluding
75	public transportation projects a single-family house,
76	manufactured or modular home, duplex, triplex, quadruplex, or
77	other multifamily unit in a multifamily residential building
78	designed for residential use in which title to each individual
79	unit is transferred to the owner under a condominium or
80	cooperative system and includes common areas and improvements
81	that are owned or maintained by an association or by members of
82	an association, and also includes the systems, other components,
83	improvements, and other structures or facilities, including, but
84	not limited to, recreational structures or facilities, that are
85	appurtenant to and located on the real property on which the
86	house, duplex, triplex, quadruplex, or other multifamily unit is
87	located, but are not necessarily part of the structure at the
88	time of completion of construction.
89	(8)  "Service" means delivery by certified mail, return
90	receipt requested, to the last known address of the addressee.
91	(9)  "Subcontractor" means a person, as defined in s. 1.01,
92	who is a contractor who performs labor and supplies material on
93	behalf of another contractor in the construction or remodeling
94	of real property a dwelling.
95	(10)  "Supplier" means a person, as defined in s. 1.01, who
96	provides only materials, equipment, or other supplies for the
97	construction or remodeling of real property a dwelling.
98	Section 3.  Subsections (1), (2), (3), (4), (5), (8), (9),
99	and (14) of section 558.004, Florida Statutes, are amended to
100	read:
101	558.004  Notice and opportunity to repair.--
102	(1)  In actions brought alleging a construction defect, the
103	claimant shall, at least 60 days before filing any an action
104	involving a single-family home, an association representing 20
105	or fewer residential parcels, a manufactured or modular home, a
106	duplex, a triplex, or a quadruplex, or at least 120 days before
107	filing an action involving an association representing more than
108	20 parcels residential parcel owners, serve written notice of
109	claim on the contractor, subcontractor, supplier, or design
110	professional, as applicable, which notice shall refer to this
111	chapter. If the construction defect claim arises from work
112	performed under a contract, the written notice of claim must be
113	served on the person with whom the claimant contracted. The
114	notice of claim must describe the claim in reasonable detail
115	sufficient to determine the general nature of each alleged
116	construction defect and a description of the damage or loss
117	resulting from the defect, if known. The claimant shall endeavor
118	to serve the notice of claim within 15 days after discovery of
119	an alleged defect, but the failure to serve notice of claim
120	within 15 days does not bar the filing of an action, subject to
121	s. 558.003. This subsection does not preclude a claimant from
122	filing an action sooner than 60 days, or 120 days as applicable,
123	after service of written notice as expressly provided in
124	subsection (6), subsection (7), or subsection (8).
125	(2)  Within 30 days after receipt of the notice of claim
126	involving a single-family home, an association representing 20
127	or fewer residential parcels, a manufactured or modular home, a
128	duplex, a triplex, or a quadruplex, or within 50 days after
129	receipt of the notice of claim involving an association
130	representing more than 20 residential parcels, the person
131	receiving the notice of claim under subsection (1) is entitled
132	to perform a reasonable inspection of the property dwelling or
133	of each unit subject to the claim to assess each alleged
134	construction defect. An association's right to access property
135	for either maintenance or repair includes the authority to grant
136	access for the inspection. The claimant shall provide the person
137	receiving the notice under subsection (1) and such person's
138	contractors or agents reasonable access to the property dwelling
139	during normal working hours to inspect the property dwelling to
140	determine the nature and cause of each alleged construction
141	defect and the nature and extent of any repairs or replacements
142	necessary to remedy each defect. The person receiving notice
143	under subsection (1) shall reasonably coordinate the timing and
144	manner of any and all inspections with the claimant to minimize
145	the number of inspections. The inspection may include
146	destructive testing by mutual agreement under the following
147	reasonable terms and conditions:
148	(a)  If the person receiving notice under subsection (1)
149	determines that destructive testing is necessary to determine
150	the nature and cause of the alleged defects, such person shall
151	notify the claimant in writing.
152	(b)  The notice shall describe the destructive testing to
153	be performed, the person selected to do the testing, the
154	estimated anticipated damage and repairs to the property
155	dwelling resulting from the testing, the estimated amount of
156	time necessary for the testing and to complete the repairs, and
157	the financial responsibility offered for covering the costs of
158	repairs.
159	(c)  If the claimant promptly objects to the person
160	selected to perform the destructive testing, the person
161	receiving notice under subsection (1) shall provide the claimant
162	with a list of three qualified persons from which the claimant
163	may select one such person to perform the testing. The person
164	selected to perform the testing shall operate as an agent or
165	subcontractor of the person receiving notice under subsection
166	(1) and shall communicate with, submit any reports to and be
167	solely responsible to the person receiving notice.
168	(d)  The testing shall be done at a mutually agreeable
169	time.
170	(e)  The claimant or a representative of the claimant may
171	be present to observe the destructive testing.
172	(f)  The destructive testing shall not render the property
173	dwelling uninhabitable.
174
175	In the event the claimant fails or refuses to agree to
176	destructive testing, the claimant shall have no claim for
177	damages which could have been avoided or mitigated had
178	destructive testing been allowed when requested and had a
179	feasible remedy been promptly implemented.
180	(3)  Within 10 days after receipt of the notice of claim
181	involving a single-family home, an association representing 20
182	or fewer residential parcels, a manufactured or modular home, a
183	duplex, a triplex, or a quadruplex, or within 30 days after
184	receipt of the notice of claim involving an association
185	representing more than 20 residential parcels, the person
186	receiving the notice under subsection (1) may forward a copy of
187	the notice of claim to each contractor, subcontractor, supplier,
188	or design professional whom it reasonably believes is
189	responsible for each defect specified in the notice of claim and
190	shall note the specific defect for which it believes the
191	particular contractor, subcontractor, supplier, or design
192	professional is responsible. Each such contractor,
193	subcontractor, supplier, and design professional may inspect the
194	property dwelling as provided in subsection (2).
195	(4)  Within 15 days after receiving a copy of the notice of
196	claim pursuant to subsection (3) involving a single-family home,
197	an association representing 20 or fewer residential parcels, a
198	manufactured or modular home, a duplex, a triplex, or a
199	quadruplex, or within 30 days after receipt of the copy of the
200	notice of claim involving an association representing more than
201	20 residential parcels, the contractor, subcontractor, supplier,
202	or design professional must serve a written response to the
203	person who forwarded a copy of the notice of claim. The written
204	response shall include a report, if any, of the scope of any
205	inspection of the property dwelling, the findings and results of
206	the inspection, a statement of whether the contractor,
207	subcontractor, supplier, or design professional is willing to
208	make repairs to the property dwelling or whether such claim is
209	disputed, a description of any repairs they are willing to make
210	to remedy the alleged construction defect, and a timetable for
211	the completion of such repairs.
212	(5)  Within 45 days after receiving the notice of claim
213	involving a single-family home, an association representing 20
214	or fewer residential parcels, a manufactured or modular home, a
215	duplex, a triplex, or a quadruplex, or within 75 days after
216	receipt of a copy of the notice of claim involving an
217	association representing more than 20 residential parcels, the
218	person who received notice under subsection (1) must serve a
219	written response to the claimant. The response shall be served
220	to the attention of the person who signed the notice of claim,
221	unless otherwise designated in the notice of claim. The written
222	response must provide:
223	(a)  A written offer to remedy the alleged construction
224	defect at no cost to the claimant, a detailed description of the
225	proposed repairs necessary to remedy the defect, and a timetable
226	for the completion of such repairs;
227	(b)  A written offer to compromise and settle the claim by
228	monetary payment, that will not obligate the person's insurer,
229	and a timetable for making payment;
230	(c)  A written offer to compromise and settle the claim by
231	a combination of repairs and monetary payment, that will not
232	obligate the person's insurer, that includes a detailed
233	description of the proposed repairs and a timetable for the
234	completion of such repairs and making payment;
235	(d)  A written statement that the person disputes the claim
236	and will not remedy the defect or compromise and settle the
237	claim; or
238	(e)  A written statement that a monetary payment, including
239	insurance proceeds, if any, will be determined by the person's
240	insurer within 30 days after notification to the insurer by
241	means of forwarding the claim, which notification shall occur at
242	the same time the claimant is notified of this settlement
243	option, which the claimant can accept or reject. A written
244	statement under this paragraph may also include an offer under
245	paragraph (c), but such offer shall be contingent upon the
246	claimant also accepting the determination of the insurer whether
247	to make any monetary payment in addition thereto. If the insurer
248	for the person receiving the claim makes no response within the
249	30 days following notification, then the claimant shall be
250	deemed to have met all conditions precedent to commencing an
251	action.
252	(8)  If the claimant timely and properly accepts the offer
253	to repair an alleged construction defect, the claimant shall
254	provide the offeror and the offeror's agents reasonable access
255	to the claimant's property dwelling during normal working hours
256	to perform the repair by the agreed-upon timetable as stated in
257	the offer. If the offeror does not make the payment or repair
258	the defect within the agreed time and in the agreed manner,
259	except for reasonable delays beyond the control of the offeror,
260	including, but not limited to, weather conditions, delivery of
261	materials, claimant's actions, or issuance of any required
262	permits, the claimant may, without further notice, proceed with
263	an action against the offeror based upon the claim in the notice
264	of claim. If the offeror makes payment or repairs the defect
265	within the agreed time and in the agreed manner, the claimant is
266	barred from proceeding with an action for the claim described in
267	the notice of claim or as otherwise provided in the accepted
268	settlement offer.
269	(9)  This section does not prohibit or limit the claimant
270	from making any necessary emergency repairs to the property
271	dwelling as are required to protect the health, safety, and
272	welfare of the claimant. In addition, any offer or failure to
273	offer pursuant to subsection (5) to remedy an alleged
274	construction defect or to compromise and settle the claim by
275	monetary payment does not constitute an admission of liability
276	with respect to the defect and is not admissible in an action
277	brought under this chapter.
278	(14)  To the extent that an arbitration clause in a
279	contract for the sale, design, construction, or remodeling of
280	real property a dwelling conflicts with this section, this
281	section shall control.
282	Section 4.  Section 558.005, Florida Statutes, is amended
283	to read:
284	558.005  Contract provisions; application.--
285	(1)  Except as otherwise provided in subsections (3) and
286	(4), the provisions of this chapter shall apply to control every
287	contract for the design, construction, or remodeling of real
288	property a dwelling entered into:
289	(a)  Between on or after July 1, 2004, and September 30,
290	2006, which contains the notice as set forth in paragraph (2)(a)
291	subsection (2) and is conspicuously set forth in capitalized
292	letters.
293	(b)  On or after October 1, 2006, which contains the notice
294	set forth in paragraph (2)(b) and is conspicuously set forth in
295	capitalized letters.
296	(2)(a)  The notice required by paragraph (1)(a) subsection
297	(1) must be in substantially the following form:
298
299	CHAPTER 558 NOTICE OF CLAIM
300
301	CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS
302	YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN
303	ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS BEFORE YOU
304	BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO
305	THIS CONTRACT A WRITTEN NOTICE, REFERRING TO CHAPTER 558, OF ANY
306	CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE
307	SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION
308	DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE
309	ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT
310	ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND
311	PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED
312	TO PROTECT YOUR INTERESTS.
313	(b)  The notice required by paragraph (1)(b) must expressly
314	cite this chapter and be in substantially the following form:
315
316	CHAPTER 558 NOTICE OF CLAIM
317
318	CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS
319	YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN
320	ALLEGED CONSTRUCTION DEFECT. SIXTY DAYS BEFORE YOU BRING ANY
321	LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO THIS
322	CONTRACT A WRITTEN NOTICE, REFERRING TO CHAPTER 558, OF ANY
323	CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE
324	SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION
325	DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE
326	ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT
327	ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND
328	PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED
329	TO PROTECT YOUR INTERESTS.
330	(3)  After receipt of the initial notice of claim, a
331	claimant and the person receiving notice under s. 558.004(1)
332	may, by written mutual agreement, alter the procedure for the
333	notice of claim process described in this chapter.
334	(4)  This chapter applies to all actions accruing on or
335	after July 1, 2004, and all actions commenced on or after such
336	date, regardless of the date of sale, issuance of a certificate
337	of occupancy or its equivalent, or substantial completion of the
338	construction dwelling. Notwithstanding the notice requirements
339	of this section for contracts entered into between on or after
340	July 1, 2004, and September 30, 2006, this chapter applies to
341	all actions accruing before July 1, 2004, but not yet commenced
342	as of July 1, 2004, and failure to include such the notice
343	requirements of this section in a contract entered into prior to
344	July 1, 2004, does not operate to bar the procedures of this
345	chapter from applying to all such actions. Notwithstanding the
346	notice requirements of this section for contracts entered into
347	on or after October 1, 2006, this chapter applies to all actions
348	accruing before July 1, 2004, but not yet commenced as of July
349	1, 2004, and failure to include such notice requirements in a
350	contract entered into before July 1, 2004, does not operate to
351	bar the procedures of this chapter from applying to all such
352	actions.
353	Section 5.  This act shall take effect October 1, 2006.

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