Florida Senate - 2006                      COMMITTEE AMENDMENT
    Bill No. SB 2036
                        Barcode 972272
                            CHAMBER ACTION
              Senate                               House
                                   .                    
                                   .                    
 1           Comm: RCS             .                    
       03/27/2006 05:06 PM         .                    
 2                                 .                    
                                   .                    
 3                                 .                    
                                   .                    
 4  ______________________________________________________________
 5  
 6  
 7  
 8  
 9  
10  ______________________________________________________________
11  The Committee on Regulated Industries (Haridopolos)
12  recommended the following substitute for amendment (660912):
13  
14         Senate Amendment (with title amendment) 
15         On page 3, line 11, through
16            page 11, line 19, delete those lines
17  
18  and insert:  
19         (7)  "Real property Dwelling" means land that is
20  improved and the improvements on such land, including
21  fixtures, manufactured housing, or mobile homes and excluding
22  public transportation projects a single-family house,
23  manufactured or modular home, duplex, triplex, quadruplex, or
24  other multifamily unit in a multifamily residential building
25  designed for residential use in which title to each individual
26  unit is transferred to the owner under a condominium or
27  cooperative system and includes common areas and improvements
28  that are owned or maintained by an association or by members
29  of an association, and also includes the systems, other
30  components, improvements, and other structures or facilities,
31  including, but not limited to, recreational structures or
                                  1
    12:27 PM   03/27/06                             s2036.ri26.001

Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2036 Barcode 972272 1 facilities, that are appurtenant to and located on the real 2 property on which the house, duplex, triplex, quadruplex, or 3 other multifamily unit is located, but are not necessarily 4 part of the structure at the time of completion of 5 construction. 6 (8) "Service" means delivery by certified mail, return 7 receipt requested, to the last known address of the addressee. 8 (9) "Subcontractor" means a person, as defined in s. 9 1.01, who is a contractor who performs labor and supplies 10 material on behalf of another contractor in the construction 11 or remodeling of real property a dwelling. 12 (10) "Supplier" means a person, as defined in s. 1.01, 13 who provides only materials, equipment, or other supplies for 14 the construction or remodeling of real property a dwelling. 15 Section 3. Subsections (1), (2), (3), (4), (5), (8), 16 (9), and (14) of section 558.004, Florida Statutes, are 17 amended to read: 18 558.004 Notice and opportunity to repair.-- 19 (1) In actions brought alleging a construction defect, 20 the claimant shall, at least 60 days before filing any an 21 action involving a single-family home, an association 22 representing 20 or fewer residential parcels, a manufactured 23 or modular home, a duplex, a triplex, or a quadruplex, or at 24 least 120 days before filing an action involving an 25 association representing more than 20 parcels residential 26 parcel owners, serve written notice of claim on the 27 contractor, subcontractor, supplier, or design professional, 28 as applicable, which notice shall refer to this chapter. If 29 the construction defect claim arises from work performed under 30 a contract, the written notice of claim must be served on the 31 person with whom the claimant contracted. The notice of claim 2 12:27 PM 03/27/06 s2036.ri26.001
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2036 Barcode 972272 1 must describe the claim in reasonable detail sufficient to 2 determine the general nature of each alleged construction 3 defect and a description of the damage or loss resulting from 4 the defect, if known. The claimant shall endeavor to serve the 5 notice of claim within 15 days after discovery of an alleged 6 defect, but the failure to serve notice of claim within 15 7 days does not bar the filing of an action, subject to s. 8 558.003. This subsection does not preclude a claimant from 9 filing an action sooner than 60 days, or 120 days as 10 applicable, after service of written notice as expressly 11 provided in subsection (6), subsection (7), or subsection (8). 12 (2) Within 30 days after receipt of the notice of 13 claim involving a single-family home, an association 14 representing 20 or fewer residential parcels, a manufactured 15 or modular home, a duplex, a triplex, or a quadruplex, or 16 within 50 days after receipt of the notice of claim involving 17 an association representing more than 20 residential parcels, 18 the person receiving the notice of claim under subsection (1) 19 is entitled to perform a reasonable inspection of the property 20 dwelling or of each unit subject to the claim to assess each 21 alleged construction defect. An association's right to access 22 property for either maintenance or repair includes the 23 authority to grant access for the inspection. The claimant 24 shall provide the person receiving the notice under subsection 25 (1) and such person's contractors or agents reasonable access 26 to the property dwelling during normal working hours to 27 inspect the property dwelling to determine the nature and 28 cause of each alleged construction defect and the nature and 29 extent of any repairs or replacements necessary to remedy each 30 defect. The person receiving notice under subsection (1) shall 31 reasonably coordinate the timing and manner of any and all 3 12:27 PM 03/27/06 s2036.ri26.001
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2036 Barcode 972272 1 inspections with the claimant to minimize the number of 2 inspections. The inspection may include destructive testing by 3 mutual agreement under the following reasonable terms and 4 conditions: 5 (a) If the person receiving notice under subsection 6 (1) determines that destructive testing is necessary to 7 determine the nature and cause of the alleged defects, such 8 person shall notify the claimant in writing. 9 (b) The notice shall describe the destructive testing 10 to be performed, the person selected to do the testing, the 11 estimated anticipated damage and repairs to the property 12 dwelling resulting from the testing, the estimated amount of 13 time necessary for the testing and to complete the repairs, 14 and the financial responsibility offered for covering the 15 costs of repairs. 16 (c) If the claimant promptly objects to the person 17 selected to perform the destructive testing, the person 18 receiving notice under subsection (1) shall provide the 19 claimant with a list of three qualified persons from which the 20 claimant may select one such person to perform the testing. 21 The person selected to perform the testing shall operate as an 22 agent or subcontractor of the person receiving notice under 23 subsection (1) and shall communicate with, submit any reports 24 to and be solely responsible to the person receiving notice. 25 (d) The testing shall be done at a mutually agreeable 26 time. 27 (e) The claimant or a representative of the claimant 28 may be present to observe the destructive testing. 29 (f) The destructive testing shall not render the 30 property dwelling uninhabitable. 31 4 12:27 PM 03/27/06 s2036.ri26.001
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2036 Barcode 972272 1 In the event the claimant fails or refuses to agree to 2 destructive testing, the claimant shall have no claim for 3 damages which could have been avoided or mitigated had 4 destructive testing been allowed when requested and had a 5 feasible remedy been promptly implemented. 6 (3) Within 10 days after receipt of the notice of 7 claim involving a single-family home, an association 8 representing 20 or fewer residential parcels, a manufactured 9 or modular home, a duplex, a triplex, or a quadruplex, or 10 within 30 days after receipt of the notice of claim involving 11 an association representing more than 20 residential parcels, 12 the person receiving the notice under subsection (1) may 13 forward a copy of the notice of claim to each contractor, 14 subcontractor, supplier, or design professional whom it 15 reasonably believes is responsible for each defect specified 16 in the notice of claim and shall note the specific defect for 17 which it believes the particular contractor, subcontractor, 18 supplier, or design professional is responsible. Each such 19 contractor, subcontractor, supplier, and design professional 20 may inspect the property dwelling as provided in subsection 21 (2). 22 (4) Within 15 days after receiving a copy of the 23 notice of claim pursuant to subsection (3) involving a 24 single-family home, an association representing 20 or fewer 25 residential parcels, a manufactured or modular home, a duplex, 26 a triplex, or a quadruplex, or within 30 days after receipt of 27 the copy of the notice of claim involving an association 28 representing more than 20 residential parcels, the contractor, 29 subcontractor, supplier, or design professional must serve a 30 written response to the person who forwarded a copy of the 31 notice of claim. The written response shall include a report, 5 12:27 PM 03/27/06 s2036.ri26.001
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2036 Barcode 972272 1 if any, of the scope of any inspection of the property 2 dwelling, the findings and results of the inspection, a 3 statement of whether the contractor, subcontractor, supplier, 4 or design professional is willing to make repairs to the 5 property dwelling or whether such claim is disputed, a 6 description of any repairs they are willing to make to remedy 7 the alleged construction defect, and a timetable for the 8 completion of such repairs. 9 (5) Within 45 days after receiving the notice of claim 10 involving a single-family home, an association representing 20 11 or fewer residential parcels, a manufactured or modular home, 12 a duplex, a triplex, or a quadruplex, or within 75 days after 13 receipt of a copy of the notice of claim involving an 14 association representing more than 20 residential parcels, the 15 person who received notice under subsection (1) must serve a 16 written response to the claimant. The response shall be served 17 to the attention of the person who signed the notice of claim, 18 unless otherwise designated in the notice of claim. The 19 written response must provide: 20 (a) A written offer to remedy the alleged construction 21 defect at no cost to the claimant, a detailed description of 22 the proposed repairs necessary to remedy the defect, and a 23 timetable for the completion of such repairs; 24 (b) A written offer to compromise and settle the claim 25 by monetary payment, that will not obligate the person's 26 insurer, and a timetable for making payment; 27 (c) A written offer to compromise and settle the claim 28 by a combination of repairs and monetary payment, that will 29 not obligate the person's insurer, that includes a detailed 30 description of the proposed repairs and a timetable for the 31 completion of such repairs and making payment; 6 12:27 PM 03/27/06 s2036.ri26.001
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2036 Barcode 972272 1 (d) A written statement that the person disputes the 2 claim and will not remedy the defect or compromise and settle 3 the claim; or 4 (e) A written statement that a monetary payment, 5 including insurance proceeds, if any, will be determined by 6 the person's insurer within 30 days after notification to the 7 insurer by means of forwarding the claim, which notification 8 shall occur at the same time the claimant is notified of this 9 settlement option, which the claimant can accept or reject. A 10 written statement under this paragraph may also include an 11 offer under paragraph (c), but such offer shall be contingent 12 upon the claimant also accepting the determination of the 13 insurer whether to make any monetary payment in addition 14 thereto. If the insurer for the person receiving the claim 15 makes no response within the 30 days following notification, 16 then the claimant shall be deemed to have met all conditions 17 precedent to commencing an action. 18 (8) If the claimant timely and properly accepts the 19 offer to repair an alleged construction defect, the claimant 20 shall provide the offeror and the offeror's agents reasonable 21 access to the claimant's property dwelling during normal 22 working hours to perform the repair by the agreed-upon 23 timetable as stated in the offer. If the offeror does not make 24 the payment or repair the defect within the agreed time and in 25 the agreed manner, except for reasonable delays beyond the 26 control of the offeror, including, but not limited to, weather 27 conditions, delivery of materials, claimant's actions, or 28 issuance of any required permits, the claimant may, without 29 further notice, proceed with an action against the offeror 30 based upon the claim in the notice of claim. If the offeror 31 makes payment or repairs the defect within the agreed time and 7 12:27 PM 03/27/06 s2036.ri26.001
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2036 Barcode 972272 1 in the agreed manner, the claimant is barred from proceeding 2 with an action for the claim described in the notice of claim 3 or as otherwise provided in the accepted settlement offer. 4 (9) This section does not prohibit or limit the 5 claimant from making any necessary emergency repairs to the 6 property dwelling as are required to protect the health, 7 safety, and welfare of the claimant. In addition, any offer or 8 failure to offer pursuant to subsection (5) to remedy an 9 alleged construction defect or to compromise and settle the 10 claim by monetary payment does not constitute an admission of 11 liability with respect to the defect and is not admissible in 12 an action brought under this chapter. 13 (14) To the extent that an arbitration clause in a 14 contract for the sale, design, construction, or remodeling of 15 real property a dwelling conflicts with this section, this 16 section shall control. 17 Section 4. Section 558.005, Florida Statutes, is 18 amended to read: 19 558.005 Contract provisions; application.-- 20 (1) Except as otherwise provided in subsections (3) 21 and (4), the provisions of this chapter shall: 22 (a) Apply to Control every contract for the design, 23 construction, or remodeling of real property a dwelling 24 entered into between on or after July 1, 2004, and September 25 30, 2006, which contains the notice as set forth in paragraph 26 (2)(a) subsection (2) and is conspicuously set forth in 27 capitalized letters. 28 (b) Apply to every contract for the design, 29 construction, or remodeling of real property entered into on 30 or after October 1, 2006, which contains the notice set forth 31 in paragraph (2)(b) and is conspicuously set forth in 8 12:27 PM 03/27/06 s2036.ri26.001
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2036 Barcode 972272 1 capitalized letters. 2 (2)(a) The notice required by paragraph (1)(a) 3 subsection (1) must be in substantially the following form: 4 5 CHAPTER 558 NOTICE OF CLAIM 6 7 CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS 8 YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN 9 ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS BEFORE 10 YOU BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER 11 PARTY TO THIS CONTRACT A WRITTEN NOTICE REFERRING TO CHAPTER 12 558 OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE 13 AND PROVIDE SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED 14 CONSTRUCTION DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR 15 OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT 16 OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE. THERE ARE 17 STRICT DEADLINES AND PROCEDURES UNDER THIS FLORIDA LAW WHICH 18 MUST BE MET AND FOLLOWED TO PROTECT YOUR INTERESTS. 19 (b) The notice required by paragraph (1)(b) must 20 expressly cite this chapter and be in substantially the 21 following form: 22 23 CHAPTER 558 NOTICE OF CLAIM 24 25 CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS 26 YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN 27 ALLEGED CONSTRUCTION DEFECT. SIXTY DAYS BEFORE YOU BRING ANY 28 LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO THIS 29 CONTRACT A WRITTEN NOTICE REFERRING TO CHAPTER 558 OF ANY 30 CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE 31 SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED 9 12:27 PM 03/27/06 s2036.ri26.001
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2036 Barcode 972272 1 CONSTRUCTION DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR 2 OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT 3 OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE. THERE ARE 4 STRICT DEADLINES AND PROCEDURES UNDER THIS FLORIDA LAW WHICH 5 MUST BE MET AND FOLLOWED TO PROTECT YOUR INTERESTS. 6 (3) After receipt of the initial notice of claim, a 7 claimant and the person receiving notice under s. 558.004(1) 8 may, by written mutual agreement, alter the procedure for the 9 notice of claim process described in this chapter. 10 (4) This chapter applies to all actions accruing on or 11 after July 1, 2004, and all actions commenced on or after such 12 date, regardless of the date of sale, issuance of a 13 certificate of occupancy or its equivalent, or substantial 14 completion of the construction dwelling. Notwithstanding the 15 notice requirements of this section for contracts entered into 16 between on or after July 1, 2004, and September 30, 2006, this 17 chapter applies to all actions accruing before July 1, 2004, 18 but not yet commenced as of July 1, 2004, and failure to 19 include such the notice requirements of this section in a 20 contract entered into prior to July 1, 2004, does not operate 21 to bar the procedures of this chapter from applying to all 22 such actions. Notwithstanding the notice requirements of this 23 section for contracts entered into on or after October 1, 24 2006, this chapter applies to all actions accruing before July 25 1, 2004, but not yet commenced as of July 1, 2004, and failure 26 to include such notice requirements in a contract entered into 27 before July 1, 2004, does not operate to bar the procedures of 28 this chapter from applying to all such actions. 29 30 (Redesignate subsequent sections.) 31 10 12:27 PM 03/27/06 s2036.ri26.001
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2036 Barcode 972272 1 ================ T I T L E A M E N D M E N T =============== 2 And the title is amended as follows: 3 On page 1, lines 6 and 7, delete those lines 4 5 and insert: 6 property, excluding public transportation 7 projects; deleting provisions limiting 8 application to only residential property; 9 revising provisions concerning notice regarding 10 pursuit of a construction defect claim in 11 certain contracts for design, construction, or 12 remodeling; applying ch. 558, F.S., 13 notwithstanding the notice provisions; 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 11 12:27 PM 03/27/06 s2036.ri26.001