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